Paradigms Lost: How Domestic Partnership Went from Innovation to Injury


In The Structure of Scientific Revolutions, Thomas Kuhn framed the history of science as a series of cycles. In each cycle, the adoption of a central paradigm is followed by the “normal science” of puzzle solving surrounding that paradigm, until enough anomalous results occur to prompt a crisis and the emergence of a new paradigm. As Kuhn made clear, the shift to a new paradigmis not easy. It is only when the existing paradigm becomes obviously flawed that we are willing to consider the possibility of disrupting it with a new paradigm.

Though Kuhn focused on the evolution of science and scientific discoveries, his theory of paradigm shifts also applies to the legal recognition of adult relationships. The recent case, Hollingsworth v. Perry (formerly Perry v. Brown), is illustrative. Perry concerns the constitutionality of Proposition 8, the ballot initiative that amended the California Constitution to prohibit legal recognition of same-sex marriage. In finding Proposition 8 unconstitutional, both the Ninth Circuit and the district court below focused on California’s regime for recognizing adult intimate relationships.

Following Proposition 8, California now reserves civil marriage solely for opposite-sex couples. Same-sex couples, by contrast, are permitted virtually all of the benefits and responsibilities of marriage, but under the rubric of domestic partnership. Though domestic partnership, like marriage, conveys important benefits and obligations, according to the Perry courts, it lacks marriage’s cultural and social heft. “‘[M]arriage,”‘ the Ninth Circuit concluded, “is the name that society gives to the relationship that matters most between two adults.” This view is consistent with the district court’s account, which noted that because domestic partnership was new and unfamiliar and lacked marriage’s”culturally superior status,” it is a “substitute and inferior institution.”

In reflecting on Perry‘s legacy, it is worth thinking about the paradigm of relationship recognition that Perry endorses. Though the district court and the Ninth Circuit decided the case on starkly different grounds, both courts were united in their view of marriage as the single paradigm model for adult intimate relationships. This framing is unsurprising. Throughout the country, efforts to secure marriage equality have necessarily focused on marriage as the paradigm model. In so doing, they have characterized marriage alternatives, like domestic partnerships and civil unions, as cut-rate counterfeits that may serve as interim measures in the struggle to secure marriage equality, but not as ends unto themselves.

But this was not always the case. Although the Perry opinions do not advert to it, there was an earlier moment in the gay rights movement when domestic partnership was an end unto itself. More specifically, for a constituency of unmarried gay and straight individuals, domestic partnership was an innovation–a paradigm shift in the legal understanding and recognition of intimate relationships and the conferral of public and private benefits. In its founding moments in California municipalities in the 1980’s and early 1990’s, long before it was transformed into a second-rate marriage substitute, many considered domestic partnership to be an alternative to marriage for purposes of relationship recognition. It was a means of remedying the discrimination that unmarried persons, whether gay or straight, suffered because marriage was the primary conduit to a range of public and private benefits.

In this essay, I trace the history of domestic partnership in California, from its origins in progressive cities like Berkeley and West Hollywood to its denunciation as a “separate and parallel” institution in the Perry litigation. In so doing, I provide an historical context in which to locate domestic partnership. More importantly, I recover a moment when interest in the legal recognition of relationships extended beyond the narrow paradigm of marriage to consider amore pluralistic model of relationship recognition. This history, I contend, offersimportant insights as we consider marriage equality and Perry‘s legacy.

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