Document Type

Article

Publication Date

2012

Abstract

Same-sex relationships have already significantly altered family law, by leading to new formal relationship statuses and incorporation of the principle that both of a child’s legal parents can be of the same sex. This essay explores further changes that may lie ahead as same-sex marriage debates increasingly affect both family law and the social meanings of marriage. Marriage as an institution has changed most dramatically because of the cumulative effects of the last half-century of de-gendering family law. Same-sex marriage–and perhaps even more so, the highly visible cultural debate over it–is contributing to this process.

The author argues that the greatest potential for changes in social meaning will arise in three areas for which there is empirical evidence of significant differences between gay and straight couples: division of household labor, sexual exclusivity, and childrearing. In each, although recent data indicate some signs of converging behaviors between the two types of couples, major differences appear likely to continue. While the number of same-sex couples in the population is too small to produce significant change in overall patterns of behavior, the issue of gay marriage has generated so much attention and debate that a mixed process of gay assimilation to and effect on the social meaning of marriage is a reasonable expectation.

As to future legal change, the author identifies three questions likely to arise in the relatively near future that will flow, directly or indirectly, from same-sex marriage:

First, we may see an increasing uptake by different-sex couples of marriage equivalent and marriage alternative statuses (e.g., domestic partnerships) that have grown out of LGBT rights efforts. If present demographic trends continue, the group of different-sex couples most likely to seek access to these new statuses will be persons middle-aged or older.

Second, federal recognition of same-sex marriage, which will occur if the Defense of Marriage Act is invalidated or repealed, could significantly increase the number of same-sex couples who marry. The end of DOMA is also likely to further complicate the law of interstate recognition, as more gay couples have their marriages recognized for federal law purposes, such as tax, but not under state laws that regulate divorce, custody and property division. Since 60 per cent of same-sex marriages are performed for out-of-state residents, the complexity of federal-state conflict regarding recognition of particular marriages is likely to increase dramatically.

Lastly, the author questions whether the issue of “accidental procreation” that has become a theme in court decisions related to same-sex marriage may migrate to marriage law more generally. In particular, she suggests that a more stringent set of rules expanding support obligations in marriages (whether of different- or same-sex spouses) in which children are born or adopted would better serve the purposes advanced by social conservatives who purport to argue on behalf of children’s welfare.

Publication Citation

100 Geo. L.J. 1855-1879 (2012)

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