Divorcing Marriage from Its Incidents: Framing Perry as a Celebration of Family Self-Determination


One of the primary fears articulated by opponents of gay marriage is that if gay and lesbian couples are allowed to marry, the institution of marriage will be harmed. This is a prominent theme in the defense of Proposition 8 (“Prop 8”). The defendant-intervenors in Perry v. Schwarzenegger (Prop 8 “Proponents”) repeatedly warned during the trial and in their appellate briefing that while they “cannot yet know” how gay marriage might influence the institution, they believe marriage will suffer “deinstitutionalization.” Deinstitutionalization, according to David Blankenhorn, witness for Proponents, is the thinning oral together removal of the rules governing an institution, such that those rules become “less comprehensible and . . . therefore less authoritative.” Proponents offered the declining marriage rates in the Netherlands, which legalized gay marriage in 2001, in support of this theory. Quoting E.J. Graff, they cautioned that if we allow gay and lesbian couples to marry, the “venerable institution will forever stand for sexual choice.”

At trial, the Perry plaintiffs (“Plaintiffs”) successfully refuted Proponents’ prediction. They persuasively discredited the suggestion that the decline in Dutch marriage rates was actually caused by the legalization of gay marriage, and pointed to the absence of any significant change in marriage trends in Massachusetts since its first gay marriage in 2003. In countering Proponents’ warnings, Plaintiffs implicitly conceded that any change to the institution would be unwelcome.

As Plaintiffs demonstrated at trial, it is unlikely that allowing gay and lesbian couples to marry will substantially deinstitutionalize marriage. This is a shame. In the context of the gay marriage movement, the fact that marriage comes with rights, benefits, and unique “respect and dignity” is framed as an argument for inclusion–a demonstration of the harms gay and lesbian couples suffer as a result of being excluded. However, the root cause of these harms is not that same-sex couples may not marry, but that marriage is a prerequisite to accessing such important benefits and being afforded such dignity. The goal of expanding benefits, such as access to health care and immigration status, is profoundly important. Yet by focusing on marriage as the key point of access, we often fail to ask the basic question of whether it is appropriate to condition the receipt of (1) needed entitlements or (2) social or governmental respect, on conformity to a particular family model. While it is certainly important that our existing legal regimes not be facially discriminatory (as Prop 8 is), it is equally important that we deconstruct and rethink the regimes we take for granted to identify whose needs are not being accounted for and why.

In answering the question “How–in an ideal world–should Perry be decided?,” I suggest that the reasoning in a Supreme Court opinion in favor of gay marriage could frustrate efforts to achieve the goals of economic justice and dignity for non-marital families. I envision how an ideal opinion might instead promote these goals by locating the liberty interest at stake in the broader value of self-determination and by celebrating, rather than denying, the constant evolution of marriage and family law. I conclude that such an opinion, while allowing gay and lesbian couples access to marriage, could also lay groundwork for dismantling marriage as a unique site of privilege.

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