By Julie Shapiro

“Modern marriage has lost its meaning -- consequently it is being abolished.”1 So wrote Friedrich Nietzsche in 1888, lamenting the radical notion that marriage should be based on love, rather than on male domination and the ownership of wife and children.

More than a century later, we once again hear that the downfall of marriage is imminent -- this time because lesbians and gay men are seeking inclusion. The notion that allowing more people to marry will doom the institution is at best a curious one, implying that marriage is a finite resource with only so much of it to go around.

By the time you read this, we may have a decision from the Washington State Supreme Court on same-sex marriage. Regardless of how the case comes out, the fact that Andersen v. King County2 was argued at all illustrates the extent to which our legal system is asked to adapt to the way people actually structure their lives.

As those structures evolve, we have two choices: allow the law to evolve with them or ignore the facts on the ground and throw hundreds of thousands, even millions, of families into chaos at times when what they need most is predictability.

ecause whether or not lesbian and gay couples are allowed to legally marry, there is no changing the fact that they are living together, buying property together and raising children together. On a daily basis, they are confronted with disadvantages, some of which can be worked around and others which cannot. And when the inevitable rough patch appears -- a serious injury or illness, a death or the dissolution of the relationship -- the rules that married couples take for granted don’t apply. Who will be allowed to visit a partner or a child in the hospital and make medical decisions if necessary? By what standards will a court referee a bitter dispute over jointly owned property or child custody?

What I am talking about here is civil or secular marriage: the set of rights and responsibilities that flow from a legal status. While clergy are authorized to solemnize both civil and religious marriage, the institutions are distinct and independent. Religious institutions are free to establish their own rules about who is eligible to marry, entirely separate from what the state requires. For example, a divorcŽ may not remarry in the Catholic Church, but is free to enter into a second civil marriage once the first is dissolved.

Conversely, there are some clergy who perform wedding ceremonies for same-sex couples. Although these ceremonies do not change a couple’s legal status, they are recognized (at least by individual congregations) as religiously binding.

The religious aspect of the term “marriage” raises strong feelings among many people who otherwise have little problem with the same-sex couple living next door. As a result, they may feel more comfortable with the status of “civil union,” which is generally defined as having all the rights and responsibilities3 of marriage without the name. In other words, it is separate from marriage but equal to it.

Which brings me back to evolving legal standards. “Separate but equal” was the law of the land for 60 years before it was repudiated. It has been less than 40 years since the United States Supreme Court struck down laws barring loving couples of different races from marrying -- accompanied by now-familiar predictions of the imminent downfall of marriage.

In Washington, the Creasman4 presumption -- that property is owned solely by the person whose name appears on the title -- was replaced by Lindsey,5 in which the court ruled that property acquired by an unmarried couple could be the subject of equitable division regardless of how title was held.

In 2004, Gormley v. Robertson6 extended this principle to same-sex couples living in marriage-like relationships in Washington. More recently, the state Supreme Court recognized the rights of a de facto parent, in this case the lesbian partner of a child’s biological mother.7

These changes have happened not because courts decide to embark on a social experiment. Rather, it is the courts -- more than any legislature -- that witness the stark reality of how people are actually living and are asked to do equity based on the facts. Trial courts and mid-level appellate courts may not leave a case for another day, waiting for popular opinion to catch up, nor can they choose the cases that will come before them.

Legislatures, on the other hand, do not have to address individual cases. They can choose not to address inequities (consider how many times our legislature has failed to add “sexual orientation” to the state anti-discrimination statute) or they can even pass laws that flout reality entirely (which is why Prohibition was such a rousing failure).

Like it or not, marriage has changed a great deal since the institution was invented and there is every reason to think it will continue to evolve. The feudal concept of marriage as political alliance is unrecognizable to us today, when (heterosexual) individuals are free to choose whom they will marry. Women and children are no longer chattel, although the idea of a truly egalitarian marriage is perhaps not quite yet universally accepted.

Will allowing same-sex couples to marry hasten the destruction of marriage? I doubt it. The histories of the eight plaintiff couples in Andersen are unremarkable in every sense but one: that they are lesbians or gay men. They met, fell in love, bought homes, raised children, celebrated birthdays and holidays. Unlike married couples, however, they have had to make extra efforts -- writing property agreements, signing powers of attorney, etc. -- to make up for the legal framework that automatically comes with a marriage license. And even these steps will not earn them all the rights of marriage, such as Social Security survivor benefits.

Ironically, this case comes at a time when the stigma of unmarried heterosexual couples living together and having children together has been all but eliminated. In an age when it is so easy to opt out of marriage, what is the sense in closing the door on these truly committed couples who want nothing more than to formalize their obligations to each other in a way that is so clear and unambiguous? n

1 Friedrich Nietzsche, Twilight of the Idols, “Skirmishes of an Untimely Man,” section 39 (prepared for publication 1888, published 1889); translated in The Columbia World of Quotations (1996).

2 Washington Supreme Court docket #75934-1, argued March 8, 2005. The companion case is Castle v. State of Washington.

3 At least, those that are within the power of the state to grant. Because the federal government does not recognize civil unions, there are many rights the status cannot confer, such as entitlement to Social Security survivor benefits.

4 31 Wn.2d 345, 196 P.2d 835 (1948). Not coincidentally, the case involved an interracial unmarried couple.

5 101 Wn.2d 299, 678 P.2d 328 (1984).

6 120 Wn. App. 31, 83 P.3d 1042 (2004).