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It's a presidential election year, meaning that California's recent okay of same-sex marriage will trigger national debate. Should we have same-sex marriage? What do its opponents have in common with past opponents of interracial marriage? Would civil unions meet non-traditional couples' needs without using the term "marriage"? While many legal pundits and culture critics have debated such questions, few have put forth as radical an analysis as has GLBT family law professor Nancy Polikoff. In Beyond (Straight and Gay) Marriage (Beacon Press, 2008), Polikoff makes an urgent case for valuing all families under the law, and it has nothing to do with marriage.

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When law makes marriage the dividing line, it harms all unmarried people," writes Polikoff, "including those with children. The harm is the dividing line. The remedy is drawing a different line more closely tailored to achieving the law's purpose." Polikoff suggests where and how that new line should be drawn by mapping the legal ground cultivated before the fight for same-sex marriage.

In the wake of 1960s and '70s "second wave" feminism, marriage was increasingly questioned even as some of its benefits were made available to unmarried people. Polikoff's marriage-skeptical position was not unknown then; she shared it with millions of others empowered by the concurrent social equality movements of the time. Polikoff's present strategy is a return to the principles of those movements -- beginning and ending with equality for all.

Getting beyond 'With us or against us'

The shift of focus from securing relationship rights for all unmarried people to winning marriage for only same-sex couples prompted Polikoff to write her book.

"At least one generation of young adults has emerged at a time when marriage for same-sex couples looked like the only GLBT family issue and when the only problem with marriage appeared to be the denial of access to same-sex couples," Polikoff says. "So I'm reclaiming the broader vision of justice for all families and pointing the way towards how to achieve that vision." If anything, that way seems more daunting than ever.

At the close of the 1980s, few GLBT legal groups were organized enough to consider the possibility of mounting a case for same-sex marriage. They had already decided to focus their resources elsewhere when the Hawaii Supreme Court ruled in 1993 that banning same-sex marriage there might violate the state constitution. Suddenly, GLBT legal support rallied round the marriage issue.

But Polikoff continued to believe there was another way. For her, marriage was just another access point -- the wrong one policy-wise and the least politically savvy -- into a world of benefits needed by unmarried people as well. In the early 1990s, the debate among the GLBT legal community was over which way -- marriage or access to relationship benefits outside of marriage -- was better. Polikoff believed the latter would ultimately prove more effective, but the movement plumped for access to marriage and pushed ahead.

But the backlash from the early fight for marriage equality proved disastrous. Same-sex marriage was outright prohibited in many states through ballot initiatives and legislative action -- and may have cost Democrats the 2004 election.

"Once the issue of access to marriage was subject to an up-or-down vote, with national and state DOMAs (Defense of Marriage Acts) and state constitutional amendments, then the battle was over whether gay and straight people are equal or not equal," Polikoff tells The Guide. "I'll always cast myself with those supporting equality."

A more promising start

The beginning of the path to more equitable treatment of non-traditional families was much more encouraging. In the 1960s and '70s, the definition of family was changing, with an increasing number of unmarried couples and single parents living with children.

Feminist lawyers helped forge a new legal paradigm more inclusive and representative of the increasing diversity of family structures.

Courts terminated sex discrimination in marriage, expunged the legal status of out-of-wedlock children as "illegitimate," and established "no fault" divorce as a civil right.

In the 1980s, unmarried couples (hetero and homo) successfully filed for "second-parent adoptions" and "joint adoptions" -- new legal terminology.

Laws providing health insurance to families, medical decision-making rights to loved ones, and economic interdependence at retirement and death within all sorts of family configurations soon followed.

In 1989, New York's highest court ruled that Miguel Braschi could remain living in his deceased same-sex partner's apartment because he was family -- his partner's spousal equivalent.

No longer, it seemed, would marriage be the only way to access rights previously granted only to husbands and wives.

But the gay romance with marriage never fully faded. Advocating for marriage has become the central focus of the GLBT rights movement even though family structures have only become more diverse since the 1990s. That leaves Polikoff arguing that the goal should be crafting legal solutions that benefit the widest variety of families.

Strategizing beyond marriage, Polikoff doesn't advocate a single solution. Her book plumbs the recent history of family law to tease out the possibilities. She offers accounts of previous precedent-setting cases, examples of innovative municipal ordinances, and anecdotes of nonstandard families denied access to rights available only through marriage. From it all she wrings a plan of action.

"Under the valuing-all-families approach," Polikoff writes, "states would keep marriage, but give it a new name -- civil partnerships -- and extend it to same-sex couples. While all marriages/partnerships would not have the same legal consequences, most would trigger specific rules, facilitating straightforward treatment. In addition, states would keep records under a 'designated family relationship' registration system. People who register would be publicly declaring that their relationship should count as family under laws that now list family members defined only by marriage, biology, or adoption. Beyond that, deciding what relationships would be covered depends on discerning each law's purpose."

Polikoff's prose is popularized legalese that dispenses with a sentimental attachment to marriage. That's noteworthy because many GLBT legal groups premise their arguments for same-sex marriage on the belief that the hoary institution is the ideal social and cultural recognition of romantic relationships, so everyone should have access to it.

Polikoff counters that acquiring legal recognition of non-traditional families -- not to mention justice -- requires removing marriage from its cultural pedestal.

Contradictory mire

Yet anyone looking for a way to dethrone marriage won't find it in this book.

Polikoff hopes that continued changes in family law will bring about a cultural shift in society's estimation of marriage. That outcome would run counter to the apparent casual relationship Polikoff shows between social movements of the 1960s and '70s and initial changes in family law. Regardless of what comes first -- the cultural or legal toppling of marriage -- Polikoff's most vigorous opponents may be the GLBT legal groups themselves.

Polikoff feels that GLBT rhetoric in the fight for same-sex marriage is straight from opponents' mouths. The gay movement, she contends, is trapped in a self-contradictory mire.

"GLBT people need to recognize that some arguments put forth for marriage equality borrow from the 'marriage promotion' rhetoric of a secular and religious right-wing 'marriage movement,'" Polikoff says. "That movement is anti-gay and anti-feminist and spreads lies about the importance of marriage in order to further a broad right-wing agenda. I want gay rights groups to stop doing this."

For these groups to drop their promotional language, they'll have to drop their fight for marriage as well -- something Polikoff doesn't say in her book. Although Polikoff supports access to marriage -- under a different name -- for anyone who wants it, her valuing-all-families approach is premised on the fact that marriage, in its current form, needs to be dismantled. That is not a position shared by any major GLBT legal group, all of which have found the campaign for "marriage equality" a potent fundraising tool.

GLBT groups have repeatedly rejected measures that actually help a larger number of non-traditional families (witness the campaign against Vermont's civil unions law) just because they're supported by anti-gay groups and don't sanction same-sex marriage. In other words, these GLBT groups are more concerned with fighting for increased shares in the cultural hegemony exerted by marriage rather than fighting for access to legal benefits for more GLBT people.

New coalitions

Perhaps this is why none of the GLBT legal groups have made a statement on Polikoff's ideas. "One woman approached me after one of my book talks," Polikoff tells The Guide, "and said, 'I agree with your position as a human being, but it doesn't have anything to do with being a lesbian.'"

And that's maybe the crux of the problem. An identity-driven approach to politics excludes people who don't identify as lesbian, gay, bisexual, or transgender.

Polikoff expects to have "ongoing conversations" with GLBT groups but hopes that gay constituencies will encourage the organizations that represent us to think more broadly. "As a litigation matter, it looks like we've run out of states to litigate for marriage. So these organizations are going to be looking for new approaches."

For Polikoff, new means back to basics. One way to get there is to form coalitions based less on identities and more on material need.

For example, in place of appeals to the tenuous parallels between the arguments for interracial and same-sex marriage, Polikoff advocates working with elders concerned about involving friends and companions in medical decision-making.

Polikoff's key to successful coalitions is to always include unmarried heterosexuals so as not to further enshrine marriage.

Reformulating legal coalitions in this way may eventually snowball into a family revolution -- which could eventually surpass the identity-driven civil rights movements that initially inspired Polikoff's approach to family law.

Beyond (Straight and Gay) Marriage could become the kernel of such a revolution. The book's valuing-all-families approach says that everyone -- even those who don't seek marriage and its benefits -- is dependent upon others, whether they call those people a family or not.

For more information on Nancy Polikoff's book, visit Beyondstraightandgaymarriage.com.

See also this issue:

Promiscuity's Freedom, or Marriage's Respectability?; Evaluating the trade in 1953

California Marriage War; Will voters put asunder the legal opinion bringing same-sex couples together?

A Long Courtship; Gay marriage in the Golden State

Author Profile:  Michael Amico

Michael Amico is a junior at Dartmouth College