Beyond Marriage: Valuing All Families under the Law

“A woman married to a man for nine months is entitled to Social Security survivor’s benefits when he dies; a woman living for nineteen years with a man or woman to whom she is not married receives nothing.”[1] The debate over marriage equality for same-sex couples was one that took over the country’s social and political agenda in the early 2000’s. Nancy Polikoff’s Beyond (Straight and Gay) Marriage challenges this agenda by asking both straights and gays alike to consider a broader definition of what constitutes a family and how this structure should be protected under the law. Those protected by the institution of marriage have privileged status in regards to tax benefits, estate benefits, government benefits, employment benefits, medical benefits, and death benefits among others. Polikoff calls for a revamping of family law; one that takes into consideration the changing nature of family units while also deemphasizing the status of marriage in our society.

Nancy Polikoff is a professor of law at American University Washington College of Law. She teaches Family Law and a seminar on Children of LGBT Parents and has been writing about, litigating about, and speaking about cases involving LGBT families for the past thirty years. Her accomplishments include co-founding the Washington, DC Feminist Law Collective, supervising family law programs at the Women’s Legal Defense Fund, and co-authoring one of the first law review articles on the custody rights of lesbian mothers. Beyond (Straight and Gay) Marriage is Polikoff’s first book. She has a daughter in her twenties and lives with her partner in Washington, DC.

The first half of the Beyond Marriage gives the reader historical context as to how we got to the position we are in with marriage today. It begins with the advances made by the second-wave feminist movement in the context of marriage, and then describes how those advances have been attacked since the 1970s by the religious right. Betty Freidan, Gloria Steinem and others are cited in this section, along with groundbreaking legislature like Title IX. From there, she moves into the gay rights movement and the intersection of lesbianism and feminism. Eventually she delves into the marriage movement of the conservative right and the how the push for preserving marriage as an institution for heterosexual couples strengthened marriage’s societal status. She then brings the reader to the contemporary fight for marriage equality, the most thorough part of the first half of the monograph.

Generally, there are two dominant perspectives in the contemporary marriage debate. First, there are those who support the institution of marriage and believe that opening it up to non-heterosexual couples will undermine social structure. Second, there are those who support equal access to marriage for LGBT individuals since they deserve the same access to benefits as married heterosexual couples. Throughout the book, Polikoff makes reference to groups on both sides of the argument. Frequently mentioned supporters of the marriage movement include The Institute for American Values, the Alliance Defense Fund, and the Liberty Counsel. Those often mentioned on the side of marriage equality include Lambda Legal, the Human Rights Campaign, and the National Gay and Lesbian Task Force. All of these groups fight for legislation supporting their side of the argument or represent individuals in relevant court cases. Polikoff separates herself from these prominent groups by taking a third stance. She questions the legitimacy of marriage as the necessary qualification for receiving legal benefits and questions whether it is fair to exclude so many other family forms by limiting such benefits. This allows her to reframe the debate over marriage by making the point that the benefits associated with marriage are not inherent, they have been constructed over time and have increasingly drawn a line between families formed through marriage and families formed through other means. By fighting for the right to marriage for LGBT couples, dominant organizations like the Human Rights Campaign are reinforcing the place of marriage in our society as cultural institution that unfairly awards rights to the married and leaves those who are unmarried out to dry. She enforces the argument that marriage is outdated and the benefits that accompany it were developed decades ago when having sex outside of marriage was taboo, illegitimate children were considered outcasts, and marriage had gender roles legally entwined within it. Through the examination of historical movements, she determines that people have changed the way that they view and structure their lives and the current marriage equality movement does not reflect this change.

The second half of the book is dedicated to describing specific aspects of her proposed approach, called “valuing all families,” to make marriage matter less. The most important aspect of this approach is identifying the purpose of specific laws that currently grant marriage-specific legal consequences. By understanding the specific objectives of these laws, relationships can be identified that would further the law’s objective without creating a specific special status for married people. In regards to this approach, she addresses health care, medical leave, medical care, domestic partner benefits, the dissolution of relationships, death, and economic compensation. Polikoff argues that by taking this approach, our society can move more towards a legal system based on the nature of care and dependency in relationships, not just the relationship’s specific name. Her solutions are not only for same-sex couples, they are also for people non-conjugal relationships, like unmarried elderly people, caregivers and the people they help, or friends living together. For instance, through this approach she examines the current family and medical leave practices of businesses across the country, supported by anecdotes of those who were not allowed such leave to care for an ill family member. Many medical leave policies are limited to caring for a spouse or child with serious illness and are often unpaid. Polikoff proposes support of the “Healthy Families Act,” a bill that provides seven days of paid leave per year “to care for a child, a parent, a spouse, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”[2] This kind of reform breaks down barriers and helps to redefine the law’s narrow definitions of family that do not accurately reflect today’s society.

Polikoff’s breadth of knowledge of her field is evident as she provides a comprehensive overview of legal history as it applies to social movements throughout the decades. This method is extremely effective in giving the reader context into the foundational aspects of marriage and establishing the true dividing line that it has become. By making interdisciplinary links through feminism, sexual liberation, class, and justice, her argument is multidimensional and looks at marriage through the views of different legal lenses. The inclusion of a significant amount of laws and court cases is appropriate since the nature of her “valuing all families” solution focuses on reforming these laws. In contrast to the formality of the included law, Polikoff includes many anecdotes and case studies throughout the monograph to explain how the law has failed certain families because of the marriage dividing line. These short stories help to break up the dense law material and make it easy to envision why her reform needs to be implemented in real world situations.

Although at first the idea of diminishing and eventually removing the significance of marriage in a society may seem radical to the general population, Polikoff’s presentation of her argument makes it seem truly possible and reasonable. She provides concrete solutions for reforming laws, many based at the state and local level, and also provides several examples of places where similar laws have been successfully enacted. Even with the abundance of case law, the Beyond Marriage is very much readable by those without Polikoff’s extensive background. This monograph is meant to reach a broad audience due to its increasing relevance, however, due to its connectedness with the marriage equality movement and gay rights, the audience becomes more limited.

Polikoff reinforces in Beyond Marriage that people should have the choice to marry based on their individual beliefs, whether they be cultural, spiritual, or religions in nature. It should not be a choice that people are forced into to obtain unique legal benefits that are specific only to marriage. The end goal of her efforts is a system in which marriage is not the rigid dividing line between who is in and who is out regarding family law, through her “valuing all families” approach. This monograph is a valuable resource for people in all family structures and can help our society move towards a legal system that helps improve the lives of all individuals and families.

Works Cited

Polikoff, Nancy D. Beyond Straight and Gay Marriage: Valuing All Families under the Law. Boston: Beacon Press, 2008.

[1] Nancy D. Polikoff, Beyond Straight and Gay Marriage: Valuing All Families under the Law (Boston: Beacon Press, 2008), Cover page.

[2] Nancy D. Polikoff, Beyond Straight and Gay Marriage: Valuing All Families under the Law (Boston: Beacon Press, 2008), 172.