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THE REACTIONARY ROAD TO FREE LOVE: HOW

DOMA, STATE MARRIAGE AMENDMENTS, AND

SOCIAL CONSERVATIVES UNDERMINE

TRADITIONAL MARRIAGE

Scott Titshaw

Much has been written about the possible effects on different-sex

marriage of legally recognizing same-sex marriage. This Article looks at the

defense of marriage from a different angle: It shows how rejecting same-sex

marriage results in political compromise and the proliferation of “marriage

light” alternatives (e.g., civil unions, domestic partnerships or reciprocal

beneficiaries) that undermine the unique status of marriage for everyone. After

describing the flexibility of marriage as it has evolved over time, the Article

focuses on recent state constitutional amendments attempting to stop further

development. It categorizes and analyzes the amendments, showing that most

allow marriage light experimentation. It also explains why ambiguous marriage

amendments should be read narrowly. It contrasts these amendments with

foreign constitutional provisions aimed at different-sex marriages, revealing

that the American amendments reflect anti-gay animus. But they also reflect

fear of change. This Article gives reasons to fear the failure to change.

Comparing American and European marriage alternatives reveals that

they all have distinct advantages over traditional marriage. The federal Defense

of Marriage Act adds even more. Unlike same-sex marriage, these alternatives

are attractive to different-sex couples. This may explain why marriage light

* Associate Professor at Mercer University School of Law. I’d like to thank Professors Kerry

Abrams, Tedd Blumoff, Johanna Bond, Beth Burkstrand-Reid, Patricia A. Cain, Jessica Feinberg,

David Hricik, Linda Jellum, Joseph Landau, Joan MacLeod Hemmingway, David Oedel, Jack

Sammons, Karen Sneddon, Mark Strasser, Kerri Stone, and Robin F. Wilson for their helpful

comments. I also thank Melanie Bruchet, Tiffany Gardner, and Cora Tench for excellent research

assistance. Ben Cooper, Chris Green, Dean Richard Gershon, and their colleagues provided

useful comments when I presented an early version of this paper at the University of Mississippi

School of Law. This paper also benefitted from audiences at the 2011 Southeastern Association

of Law Schools New Scholars Workshop, and particularly Professor Barbara Cox, who mentored

me and offered excellent suggestions. I thank Mercer University School of Law and Dean Gary

Simson for their confidence and the summer stipend that enabled me to write this article. Dean

Simson’s insights and suggestions were also invaluable. Finally, I’d like to thank Robert Bush

and Greg Nevins for their useful comments on this article and for all of the extraordinary work

they and their colleagues do at Georgia Legal Services and Lambda Legal. Of course, any

mistakes and opinions expressed in this article are entirely my own.

TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM

206 WEST VIRGINIA LAW REVIEW [Vol. 115

regimes increasingly extend to all couples, and why these gender-neutral

marriage alternatives—once established—tend to be permanent. In the end, all

couples could be left with cafeteria options for legal relationship recognition.

This may be a good solution, but it is certainly not a conservative one.

I. I

NTRODUCTION ...................................................................................... 207

II. K

ULTURKAMPF USA: THE BATTLE OVER SAME-SEX CIVIL

MARRIAGE ............................................................................................ 215

A. A Brief History of the Evolving Institution of Marriage ................ 217

B. The Movement for Covenant Marriage .......................................... 221

C. The Debate Over Same-Sex Marriage Equality ............................. 226

1. The Gay and Feminist Debate About Same-Sex Marriage ...... 228

2. The Conservative Debate About Same-Sex Marriage ............. 230

3. Same-Sex Marriage Recognition Is a Conservative Move ...... 239

D. The Movement for Same-Sex Marriage in the United States ......... 245

III. F

OREVER FROZEN IN 2004: THE CONSTITUTIONAL AMENDMENT

STRATEGY ............................................................................................. 249

A. Constitutional Amendments Protecting Marriage in Germany

and Hungary .................................................................................. 250

B. Anti-Gay American Constitutional Amendments ........................... 255

1. Four Categories of Anti-Gay Marriage Amendments and

the Likely Effects of Each ........................................................ 258

2. Three Reasons for Construing “Dead Hand” Marriage

Amendments Narrowly ............................................................ 263

IV. C

OMPARING MARRIAGE LIGHT ALTERNATIVES FOR BOTH SAME-

AND

DIFFERENT-SEX COUPLES ............................................................. 267

A. Marriage Light in Europe .............................................................. 269

B. U.S. State Experiments with Marriage Light ................................. 274

C. The Lightest Option—Cohabitation Without Registration ............. 280

V. T

HE LIKELY PROLIFERATION OF MARRIAGE LIGHT OPTIONS FOR

ALL COUPLES ........................................................................................ 283

A. The Political Calculus in Favor of Marriage Light ....................... 283

B. Advantages of Marriage Alternatives for Couples with a

Choice ............................................................................................ 286

C. How DOMA Makes Marriage Light Options More Attractive ...... 289

D. Different-Sex Couples Are Increasingly Likely to be Eligible

for Marriage Light ......................................................................... 292

E. How Constitutional Marriage Amendments Lead to the

Proliferation of Marriage Light Alternatives for Everyone ........... 294

F. Once Established, Gender-Neutral Marriage Light Is Likely to

Last ................................................................................................ 298

VI. C

ONCLUSIONS ....................................................................................... 301

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2012] THE REACTIONARY ROAD TO FREE LOVE 207

I don’t support gay marriage despite being a Conservative. I

support gay marriage because I’m a Conservative.

—David Cameron

I. I

NTRODUCTION

Opponents of same-sex marriage are destroying traditional marriage,

not defending it as they claim.

This may sound odd in terms of the current

marriage debate. Yet, it becomes obvious if one takes a step back to view the

struggle in context.

Because there are at least as many proponents as opponents of same-

sex marriage, the standoff tends to result in a compromise recognizing some

form of marriage light.

This trend toward legal alternatives to marriage is

amplified by traditionalist support of covenant marriage options and—at least

for now—by the federal Defense of Marriage Act (“DOMA”).

It is virtually

ensured by the strategy of amending state constitutions, which forestalls the

marriage option for future generations and invites experimentation with

marriage light alternatives. And once gender-neutral marriage light is

established, it is resilient. In the end, all couples could be left with cafeteria

options for legal relationship recognition.

As British Prime Minister David Cameron has recognized, marriage is

conservative, and its nature does not change when it is extended to same-sex

couples.

Some progressive activists agree. Since at least the 1950s, some

supporters of gay and lesbian equality have rejected advocacy of same-sex

marriage because it could shore up the conservative institution of marriage

Tim Ross, Archbishop Attacks Cameron’s “Gay Marriage” Plan, DAILY TELEGRAPH

(U.K.) (Oct. 5, 2011), http://www.telegraph.co.uk/news/uknews/8809548/Archbishop-attacks-

Camerons-gay-marriage-plan.html.

While there are good reasons to doubt this claimed motivation in many cases, see infra Part

VI, this Article is concerned with those who sincerely care about defending marriage more than

disapproving of lesbians and gay men. Hopefully, it will convince some that their opposition to

same-sex marriage is shortsighted and counterproductive. In the process, it provides a new take

on several broader legal questions in the marriage debate.

See infra Part V.A (describing this political calculation); see also infra pp. 209–209

(defining “marriage light”).

Defense of Marriage Act, Pub. L. No. 104-100, §3(a), 110 Stat. 2419 (2006) (codified at 1

U.S.C. § 7 (2006); 28 U.S.C. § 1738C (2006)). While the federal definition of marriage in

DOMA may soon be struck down by the U.S. Supreme Court, see Massachusetts v. U.S. Dept. of

Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) (holding that DOMA violated equal

protection principles, and thus was unconstitutional), petition for cert. filed, 81 U.S.L.W. 3006

(July 20, 2012) (No. 12-97), DOMA remains in effect as of the publication of this article.

Ross, supra note 1.

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208 WEST VIRGINIA LAW REVIEW [Vol. 115

rather than liberate individuals to define their own families of choice.

Conservatives like David Brooks and Jonathan Rauch support same-sex

marriage for that very reason.

But the point seems lost on conservative

opponents of marriage equality.

They focus instead on their fears about the

possible effects of same-sex marriage on different-sex spouses. Meanwhile,

they fail to recognize the much more radical consequences of their own short

term victories: the likelihood that their strategies in opposing marriage for

lesbians and gay men will eventually undermine the status of civil marriage for

everyone.

While marriage has evolved dramatically over time, it continues to play

two parallel roles.

Largely because of its historical, religious, and social

connotations, marriage communicates a set of general expectations and

messages about a married couple and their family.

Governments also regulate

civil marriage; and governments, businesses and others rely on this legal status

in determining thousands of specific benefits, rights, limitations, and

responsibilities for couples and their children.

See, e.g., Paula Ettelbrick, Since When is Marriage a Path to Liberation?, OUT/LOOK:

NAT’L GAY & LESBIAN Q., Fall 1989, reprinted in ANDREW SULLIVAN, SAME-SEX MARRIAGE:

PRO AND CON 118, 123–24 (1997); Nancy Polikoff, Law that Values All Families: Beyond

(Straight and Gay) Marriage, 22

J. AM. ACAD. MATRIM. LAW. 85, 90–91 (2009).

Jonathan Rauch, For Better or Worse?, THE NEW REPUBLIC, May 6, 1996, reprinted in

ULLIVAN, supra note 6, at 169, 169–181; see also ANDREW SULLIVAN, VIRTUALLY NORMAL: AN

ARGUMENT ABOUT HOMOSEXUALITY 182–83 (1995); David Brooks, The Power of Marriage,

N.Y.

TIMES, Nov. 22, 2003, at A15; Theodore Olson, The Conservative Case for Gay Marriage,

EWSWEEK, Jan. 18, 2010, at 48.

See infra Part II.C.2.

See infra Part V.

See infra Part II.A (describing some of the substantial ways in which marriage has changed

over time).

See Varnum v. Brien, 763 N.W.2d 862, 872 (Iowa 2009) (recognizing that marriage

“demonstrate[s] to one another and to society [a couples’] mutual commitment”); Kerrigan v.

Commissioner of Public Health, 957 A.2d 407, 417 n.14 (Conn. 2008) (“‘Any married couple

[reasonably] would feel that they had lost something precious and irreplaceable if the

government were to tell them that they no longer were “married” and instead were in a “civil

union.” The sense of being “married”—what this conveys to a couple and their community, and

the security of having others clearly understand the fact of their marriage and all it signifies—

would be taken from them.’”(quoting Brief for Lambda Legal Defense and Education Fund, Inc.

as Amici Curiae, (No. 17716), 2007 WL 4725454, at *5)).

See Varnum, 763 N.W.2d at 873. Paula Ettelbrick observed that marriage “has become a

facile mechanism for employers to dole out benefits, for businesses to provide special deals and

incentives, and for the law to make distinctions in distributing meager public funds.” Ettelbrick,

supra note 6, at 123–24.

TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM

2012] THE REACTIONARY ROAD TO FREE LOVE 209

More and more people now view as unjust the refusal to grant these

benefits, rights, and responsibilities to same-sex couples and their children.

attempting to compromise and provide equal legal rights without altering the

tradition- and religion-laden communicative component of marriage,

presidents, legislatures, and some judges have separated those legal attributes

from the word “marriage.”

One popular solution has been to maintain

different-sex civil marriage alongside new, separate-but-equal same-sex “quasi-

marriages” with the legal attributes of marriage, but a different label such as

“civil union” or “domestic partnership.”

Given the nature of political compromise, some legislatures do not go

as far as others. Instead, they have devised lesser, “semi-marriage” institutions,

which alter the legal attributes as well as the name of the recognized

relationship.

Different rules and less benefits and responsibilities stem from

these experimental new “domestic partnership” and “reciprocal beneficiary”

regimes.

Because of the multifaceted distinctions in nomenclature and attributes

of new quasi- and semi-marriage institutions, this article uses the collective

term “marriage light” when discussing forms of state-created recognition of

pairs if the forms do not constitute full marriage equality under applicable state

or foreign law, including the communicative label “marriage.”

See Marriage, GALLUP, http://www.gallup.com/poll/117328/marriage.aspx (last visited

Sept. 8, 2012) (showing consistently increasing number of people who “think marriages between

same-sex couples should . . . be recognized by the law as valid, with the same rights as traditional

marriages” from twenty-nine percent to fifty percent since 1996).

See, e.g., Baker v. State, 744 A.2d 864, 886 (Vt. 1999) (recognizing the right of same-sex

couples to “the same benefits and protections afforded by Vermont law to married opposite-sex

couples” while suggesting that a quasi-marriage alternative would meet that standard); infra note

264 (George W. Bush’s view that states should be able to grant benefits and duties of marriage

without the label); infra notes 340–342 and accompanying text (listing state statutes sanctioning

various marriage light regimes).

This Article employs the useful “quasi-marriage” and “semi-marriage” terminology coined

by Kees Waaldijk. See Kees Waaldijk, Others May Follow: The Introduction of Marriage,

Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries, 38

NEW

ENG. L. REV. 569, 570 (2004). Since the federal DOMA refuses recognition of over 1,100 federal

benefits, rights and responsibilities of marriage to all same-sex couples and likely to most

different-sex couples in quasi-marriages, see infra notes 428–433, all American same-sex

marriages and most same- or different-sex quasi-marriages could be classified as semi-marriages.

See Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 379 (D. Mass. 2010) (citing General

Accounting Office reports concluding that DOMA implicated 1,138 laws in 2004). However, for

purposes of this Article it is useful to differentiate between marriage, quasi-marriage, and semi-

marriage as determined solely by state or foreign law.

See infra note 342 and accompanying text.

See infra Part V.B, note 342.

In addition to registered relationships, this Article considers marriage light to include

legally recognized cohabitation without registration in jurisdictions where significant legal

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210 WEST VIRGINIA LAW REVIEW [Vol. 115

Various forms of marriage light represent an increasingly popular

compromise between those who favor and those who oppose marriage equality

for same-sex couples. Faced with strong opposition to marriage equality,

supporters of same-sex marriage have often settled for marriage light

compromises. Some conservatives opposing same-sex marriage also find these

compromises acceptable.

Even conservatives opposing compromise seem less

troubled by new marriage light alternatives than by the specter of full marriage

equality.

Ignoring any independent danger to unitary marriage posed by

consequences stem from that recognition. See infra Part IV.C. It appears that the term “marriage

lite” was first used in the context of covenant marriage debates in the 1990s, describing the status

to which “marriage plus” covenant marriages would relegate “regular marriage.” See Joel A.

Nichols, Louisiana’s Covenant Marriage Law: A First Step Toward a More Robust Pluralism in

Marriage and Divorce Law, 47

EMORY L.J. 929, 956 (1998) (citing opponents of Louisiana’s

covenant marriage law during the 1997 debate for the proposition that covenant marriage would

“undermine and degrade the status of ‘regular’ marriages” as “‘marriage lite, L-I-T-E,’” in

comparison) (citing Nightline: Covenant Marriages: New Louisiana Law Makes It Harder to

Divorce (ABC television broadcast Aug. 20, 1997); see also Gary H. Nichols, Covenant

Marriage: Should Tennessee Join the Noble Experiment?, 29

U. MEM. L. REV. 397, 450 (1999)

(citing Amitai Etzioni, Marriage With No Easy Outs, N.Y.

TIMES, Aug. 13, 1997, A23, as an

example of the way “many writers” refer to the two-tier system of “Marriage Lite” and

“Marriage Plus” as a matter of concern to both liberals and conservatives). Since 2000, “marriage

lite” and “marriage light” have been widely used to describe civil unions, domestic partnerships

and other non-marital forms of recognition for same-sex relationships. The term here is not

meant to diminish the significance of this recognition, which provide important legal benefits and

societal recognition to many relationships. Rather, it is used as shorthand to distinguish those

relationships from legally recognized marriages. In an attempt to minimize the denigrating sense

of the term, this article employs the term “marriage light,” rather than “marriage lite.”

See, e.g., RICHARD A. POSNER, SEX AND REASON 311–14 (1992) (suggesting the possible

desirability of a Swedish-style contractual “simulacrum of marriage” since the incidents of

marriage, designed with heterosexual couples in mind, may not be a precise fit for same-sex

couples); William J. Bennett, GOP Must Wed Values to Politics,

L.A. TIMES, Jan. 18, 2004,

(Opinion) at 2, available at 2004 WLNR 19795619 (expressing openness to states granting

“individuals in a relationship of mutual responsibility certain benefits, privileges, rights and

immunities ‘based on need,’” so long as they are allocated “without discrimination and without

privileging homosexual relations”); David Blankenhorn & Jonathan Rauch, A Reconciliation on

Gay Marriage, N.Y.

TIMES, Feb. 22, 2009, at WK 11 (in which the president of the Institute for

American Values joined Jonathan Rauch in recognizing that opponents of marriage equality

“may come to see civil unions as a compassionate compromise” and calling for Congress to

create federal civil unions with “robust religious-conscience exceptions”); Ross, supra note 1

(reporting that British Bishop Kieran Conry objected to marriage equality while stressing “the

Catholic Church supported civil partnerships [in the U.K.], which confer the same rights to gay

couples as marriage”).

Even Maggie Gallagher, co-founder of the National Organization for Marriage, once

implied that it might be acceptable to experiment with marriage light for same-sex couples as a

prerequisite to seriously considering the issue of marriage equality for lesbians and gay men. See

Maggie Gallagher, Is There a Fourth Option? Granting Legal Benefits to Gay Couples Won’t

Mute the Marriage Debate, N

AT’L REV. ONLINE (June 6, 2005, 8:04 AM),

http://www.nationalreview.com/articles/214617/there-fourth-option/maggie-gallagher (stating

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2012] THE REACTIONARY ROAD TO FREE LOVE 211

experimentation, they focus on minimizing, if not eliminating, recognition of

same-sex couples.

Ironically, some “conservatives” have also supported

voluntary different-sex covenant marriage options, pioneering the realm of

legal alternatives to unitary marriage and blazing a trail for the more popular

marriage light options to follow.

The uncompromising conservatives, who oppose marriage light for

same-sex couples, argue that it poses a danger to the unique status of marriage

in our society. They are right, but for the wrong reason. They believe it is

because same-sex civil unions and domestic partnerships are too similar to

marriage.

Actually, the danger is that they will be too different from marriage,

and therefore more attractive to different-sex couples.

The experience of French pactes civil de solidarité (“PACS”), Dutch

registered partnerships, and similar institutions in several U.S. jurisdictions

reveals that some heterosexual couples find marriage light an attractive

alternative to traditional marriage.

That attraction is greatest when the

alternative offers consequential differences that are advantageous for some.

For example, PACS are attractive because they are more flexible and easier to

end quickly than civil marriages in France.

that she has “no strong objection” to civil unions or domestic partnerships available to non-sexual

unions and same-sex couples, provided that they are not available to couples, who are eligible to

marry).

See infra pp. 236–237, 255–257.

See infra notes 83–84 and accompanying text; see also, e.g., Jamie Alan Aycock,

Contracting Out of the Culture Wars: How the Law Should Enforce and Communities of Faith

Should Encourage More Enduring Marital Commitments, 30

HARV. J. L. & PUB. POL’Y 231

(2006); Governor, Wife Enter Marriage Covenant, C

HI. TRIBUNE, Feb. 15, 2005, at 13, available

at 2005 WLNR 23424145 (reporting Arkansas Gov. Mike Huckabee’s renewal of his marriage in

covenant form to raise support for covenant marriage legislation nationwide).

Perhaps the language of their arguments (i.e., marriage light constitutes “counterfeit

marriage”) demonstrates this best. See, e.g., Courtney Megan Cahill, The Genuine Article: A

Subversive Economic Perspective on the Law’s Procreationist Vision of Marriage, 64

WASH. &

LEE L. REV. 393, 416–23 (2007) (cataloguing various instances of the counterfeit analogy as used

to describe marriage light); Nancy J. Knauer, A Marriage Skeptic Responds to the Pro-Marriage

Proposals to Abolish Civil Marriage, 27

CARDOZO L. REV. 1261, 1269 n.45 (2006) (“The

traditional values movement routinely uses the term ‘counterfeit marriage’ to refer to Civil

Unions, registered domestic partnerships and even the grant of employee benefits to same-sex

partners.”).

See infra Part IV.A (popular appeal of marriage light alternatives like PACS grows with

their consequential differences from legal marriage).

See infra notes 322, 334, 371 and accompanying text.

See infra note 337 and accompanying text.

See infra notes 326–329 and accompanying text. Dutch registered partnerships and Illinois

civil unions may be somewhat less attractive because of their greater similarity to marriage. See

infra notes 334–337, 365 and accompanying text.

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212 WEST VIRGINIA LAW REVIEW [Vol. 115

Congress has greatly increased the likelihood that marriage light will

grow in popularity in the United States. By enacting the Defense of Marriage

Act (“DOMA”), it dramatically increased the variety of possible packages of

rights and responsibilities available to couples in many states. DOMA defines

“marriage” for federal purposes as “only a legal union between one man and

one woman as husband and wife,”

ensuring that same-sex marriages and

same- and most different-sex marriage light relationships do not entail the

extensive federal consequences of marriage.

In many states, DOMA doubles

or triples the number of significantly different relationship categories available.

In California, for example, there are now different-sex spouses with all state

and federal rights of marriage, same-sex spouses with the state label and rights

of marriage but few if any federal rights, and same- and different-sex domestic

partners with similar state rights but neither the symbolic label nor federal

consequences of marriage.

As with PACS in France, the substantially less consequential American

forms of marriage light can be attractive. Same-sex couples are right to bemoan

the second-class status of even the most comprehensive forms of quasi-

marriage. But the distinctions of marriage light that are disadvantages to some

couples are advantageous to others.

Many couples are better off with single

tax treatment, the absence of community property, or easy relationship

dissolution.

State legislatures in California, Washington, and New Jersey

recognized the advantages of marriage light under Social Security regulations

when they opened up domestic partnerships to certain different-sex couples

over the age of sixty-two in addition to all same-sex couples.

Even alternative institutions very similar to marriage have advantages

for different-sex couples who reject the heavy residue of gender stereotyping

and historical and religious meanings that still adhere to the word “marriage.”

Conservative efforts to exclude lesbians, gay men and their children from the

protection of marriage add a new layer of meaning that may be unattractive to

Defense of Marriage Act, Pub. L. No. 104-199, § 3(a), 110 Stat. 2419 (1996) (codified at 1

U.S.C. § 7 (2006); and 28 U.S.C. § 1738C (2006)).

See infra Part V.C.

See infra note 194; but see infra note 431 (one IRS official recently opined that different-

sex couples in Illinois civil unions that were expressly equated with marriage under state law

qualified as “husband and wife” under federal tax law in spite of DOMA).

See infra Part V.B–C.

See infra Part V.C.

CAL. FAM. CODE § 297(a)(4)(B) (2012); N.J. STAT. ANN. § 268A-4(b)(5) (2012); WASH.

REV. CODE § 26.60.030(6) (2012). The Washington statute has recently been amended (pending

approval by referendum in November 2012) to recognize marriage equality for same-sex couples

and to phase out domestic partnerships except for couples where at least one partner is at least

sixty-two years old. See W

ASH. REV. CODE § 26.60.030(2) (2012); see also infra p. 299.

See infra notes 405–408 and accompanying text.

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2012] THE REACTIONARY ROAD TO FREE LOVE 213

some young heterosexuals as well. A few American celebrities have famously

hesitated to marry until same-sex couples can.

Other Americans have chosen

civil unions over marriage.

British and Austrian different-sex couples feel so

strongly about the symbolic clean slate of quasi-marriage registered

partnerships that they have filed suit challenging their ineligibility to register as

partners.

U.S. state legislatures enacting marriage light regimes have recently

tended to extend coverage to different- and same-sex couples equally.

Where

marriage light regimes have recognized advantages over marriage, it is hard

imagining democratically elected representatives doing anything else. As with

marriage discrimination against same-sex couples, marriage light

discrimination against different-sex couples also raises serious state and federal

constitutional concerns.

Unless the U.S. Supreme Court recognizes a constitutional right to

marriage equality for same-sex couples, there is bound to be more and more

experimentation with marriage light alternatives in the United States.

Opponents of same-sex marriage have succeeded widely with a

reactionary strategy of anchoring fleeting opposition to marriage equality with

anti-gay state constitutional amendments.

By freezing in constitutions the

strong anti-gay sentiment of 2000–2008, the George W. Bush Generation left

future judges and legislators little or no option for recognizing same-sex

relationships except the invention of new, experimental alternatives to

marriage.

The more legislatures innovate and alter traditional aspects of

Nicole Eggenberger, How Angelina Jolie and Brad Pitt Changed Their Mind About

Marriage, U

S WEEKLY (Apr. 13, 2012, 7:39 PM), http://www.usmagazine.com/celebrity-

news/news/how-angelina-jolie-and-brad-pitt-changed-their-mind-about-marriage-2012134;

Jason Mraz Waiting for Gay Marriage, H

UFFINGTON POST (Jan. 22, 2011, 7:25 PM),

http://www.huffingtonpost.com/2011/01/22/jason-mraz-waiting-for-gay-marriage_n_8125

93.html; Brad Pitt, My List: Fifteen Things I Think Everyone Should Know, E

SQUIRE (Oct. 1,

2006, 2:00 AM), http://www.esquire.com/features/ESQ1006ESQ1006_164R_2.

See infra notes 359–362 and accompanying text.

See infra notes 448–449 and accompanying text.

See infra notes 344–345 and accompanying text.

See infra Part V.E

See Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (striking down

California’s state marriage amendment as unconstitutional under the Fourteenth Amendment of

the US Constitution), aff’d Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) (affirming on more

limited grounds).

See infra pp. 255–258.

Twenty-seven states enacted constitutional amendments banning marriage equality

between 2000 and 2008. Alaska and Nebraska had enacted trail-blazing amendments in 1998 and

1999, respectively. See, e.g., A

LASKA CONST. art. I, § 25 (1999); NEB. CONST., art. I, § 29 (2000).

Hawaii’s earlier amendment does not limit future options because it merely authorized the

legislature to define marriage. H

AW. CONST. Art. I, § 23 (1998). Since 2008, only North Carolina

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214 WEST VIRGINIA LAW REVIEW [Vol. 115

marriage, the more likely their creations will pass muster under state

constitutions that expressly prohibit same-sex marriage and, in some cases,

“substantially similar” alternatives.

And the more likely the new institutions

will attract different-sex couples. Anti-gay constitutional amendments also

increase the likelihood that state constitutions will require gender-neutral

marriage light while prohibiting same-sex marriage.

Opponents of marriage equality are either badly miscalculating their

negative effect on the exclusive status of marriage or rationalizing a deeper

desire to withhold recognition of lesbian and gay couples, even if they

undermine traditional marriage in the process. This Article starts with the

assumption that their primary goal sincerely is to protect marriage. After

exploring the actual repercussions of this fundamentalist opposition, however,

it is difficult not to question whether that goal has actually been subordinated to

strategies catering to populist animus against lesbians, gay men, and their

relationships. Even opponents of marriage equality sincerely motivated by a

desire to preserve marriage traditions rather than animus have been lured to

distraction by short-sighted battles against same-sex couples, which were easy

because of public homophobia. One prominent long-time foe of same-sex

marriage seemed to recognize this point recently when he changed his position

to favor equality, explaining that he has recognized “with deep regret” that

“much of the opposition to gay marriage seems to stem, at least in part, from an

underlying anti-gay animus.”

Part II of this Article explores the evolution of civil marriage over time

and describes the political battles surrounding both different-sex covenant

marriage and recognition of same-sex couples over the last generation. It also

sets out and evaluates conventional arguments on both sides of the marriage

debate before concluding that same-sex marriage is clearly a conservative move

when considered in context. Part III describes constitutional marriage

provisions in Europe and the U.S., contrasting the general protection and

substantial support of marriage and families by the former with the specific

exclusion of same-sex couples in the latter. It classifies anti-gay American

marriage amendments into four groups and describes the possibility of marriage

has adopted a new anti-gay constitutional amendment. See N.C. CONST. art. XIV, § 6 (2011).

However, Minnesota voters will face such an amendment in November 2012. David Bailey,

Minnesota Voters to Decide on Gay Marriage Ban, R

EUTERS (May 22, 2011, 2:41 AM),

http://www.reuters.com/article/2011/05/22/us-minnesota-marriage-idUSTRE74L0GZ20110522.

Hopefully, Minnesota voters will consider all of the consequences of a vote in favor of the anti-

gay marriage amendments.

See infra notes 273–276 and accompanying text.

See infra Part V.E.

David Blankenhorn, How My View on Gay Marriage Changed, N.Y. TIMES, June 23, 2012,

available at 2012 WLNR 13113935 (announcing new support of marriage equality while

confirming he still cares deeply about traditional marriage).

TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM

2012] THE REACTIONARY ROAD TO FREE LOVE 215

light in each case. It criticizes the undemocratic social conservative strategy of

enshrining one generation’s particular current version of marriage in

constitutions in order to limit the options of future generations who may

disagree. Then, it suggests three reasons why state marriage amendments

should be read narrowly, limiting ambiguous attempts at “dead hand” control

over the particular social policies pursued by future generations.

Part IV compares various marriage and marriage light regimes

recognized in the U.S. and some other countries, noting their availability and

attractiveness to different-sex couples. It also briefly discusses unregistered

partners, and how their legal recognition alters the picture. Part V develops the

thesis that changing politics, evolving social understandings, and unchanging

constitutional definitions of marriage will result in increasing recognition of

permanent gender-neutral marriage light options in the United States. It

explains how marriage light alternatives have clear advantages over marriage

for some couples, particularly in light of DOMA. It also identifies the tendency

of nations and states, which later recognize marriage equality, to maintain

established gender-neutral marriage light options. Thus, even if same-sex

marriage recognition were not a conservative move in itself, it is conservative

in comparison to the likely alternative.

This Article concludes that efforts to halt the continuing evolution of

marriage before it is extended to same-sex couples will not actually “defend”

marriage. Instead, they are likely to lead to the demise of the marriage

monopoly in favor of competition from a cafeteria of distinctive alternative

forms of relationship recognition for all couples. This Article does not take a

position as to whether that flexibility will be good or bad. But it points out the

obvious: This outcome is not consistent with the conservative goal of

maintaining the traditional stabilizing, if evolving, monopoly of civil marriage.

II. K

ULTURKAMPF USA: THE BATTLE OVER SAME-SEX CIVIL MARRIAGE

Justice Scalia has branded the U.S. culture war over lesbian and gay

rights a “Kulturkampf,”

apparently referencing German Chancellor Otto von

Bismarck’s efforts opposing the influence of the Roman Catholic Church in

German politics.

Among other ends, Bismarck’s efforts resulted in the

The term “dead hand” in the context of constitutional interpretation was borrowed from

criticism of estate planning in perpetuity. See infra note 295 and accompanying text. Part III.B.2

suggests that courts borrow the property law technique of narrow construction (reading wills

narrowly where a devisor was attempting to control generations far into the future) in certain

specific instances when interpreting constitutional provisions aimed to prevent future majorities

from altering an earlier generation’s specific policy decisions.

Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting) (“The Court has

mistaken a Kulturkampf for a fit of spite.”).

12 THE CAMBRIDGE MODERN HISTORY 141–55 (1910); Lech Trzeciakowski, The Prussian

State and the Catholic Church in Prussian Poland 1871–1914, 26 S

LAVIC REV. 618 (1967).

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216 WEST VIRGINIA LAW REVIEW [Vol. 115

Prussian Civil Marriage Law of 1874, which withdrew the clergy’s authority to

maintain state registers of civil marriage.

To this day, Germans must be

legally married in a civil ceremony, and any religious wedding ceremony is

both optional and unrecognized by the state.

In spite of the popular idea of separation of church and state stemming

from the First Amendment, Americans conflate religious and civil marriage to a

far greater extent than citizens of countries like Germany.

Clergy in the U.S.

are authorized to perform a single ceremony, which is recognized for both civil

and religious purposes.

This union of religious and civil marriage

communicates the social and historical meaning evoked by the label “marriage”

in a way that the German civil register does not. It also intensifies political

passions and creates confusion among U.S. lawyers and politicians, who

regularly refer to religious sources when defending the “sanctity of marriage”

against lesbians and gay men.

Meanwhile, U.S. state and federal governments

have defined and recognized civil marriage as a short cut in determining

relationship status for purposes of hundreds of legal rights, benefits, duties, and

responsibilities.

MARGARET BARBER CROSBY, THE MAKING OF A GERMAN CONSTITUTION: A SLOW

REVOLUTION 156–57 (2008).

Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1793–94 (2005).

Id.

Id. at 1794.

See, e.g., Scott Titshaw, A Modest Proposal to Deport the Children of Gay Citizens, &

Etc.: Immigration Law, the Defense of Marriage Act, and the Children of Same-Sex Couples, 25

GEO. IMMIGR. L.J. 407, 446–73 (2011) (citing numerous references to the religious basis of

marriage in the legislative history of DOMA); David VonDrehle, Gay Marriage is a Right,

Massachusetts Court Rules, W

ASH. POST, Nov. 19, 2003, at A1 (quoting President George W.

Bush’s vow to “defend the sanctity of marriage” because “[m]arriage is a sacred institution

between a man and a woman.”). Case explains both the paradox of American conflation of

religious and civil marriage and the more pronounced Protestant opposition to same-sex civil

marriage based on the way Protestant denominations in the United States “have essentially

abdicated the definition, creation and above all the dissolution of marriage to the state,” using

this formally secular institution for sectarian ends just as they have state-sponsored public

schools. Case, supra note 50, at 1795–96. Case suggests that disaggregating the religious and

secular licensing of marriage may be a precondition to settling the issue of marriage equality. Id.

at 1797.

See Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 379–383 (D. Mass. 2010)

(listing examples of federal programs whose benefits were proscribed by DOMA, including the

Federal employees Health Benefits Program, the Federal Employees Dental and Vision Insurance

Program, the Flexible Spending Arrangement Program, Social Security Retirement Benefits,

Social Security Survivor Benefits (Lump-Sum Death Benefit and Widower’s Insurance Benefit),

and joint spousal filing status on federal income tax under the Internal Revenue Code); U.S.

GEN.

ACCOUNTING OFFICE, GAO-04-353R: DEFENSE OF MARRIAGE ACT: UPDATE TO PRIOR REPORT 1

(2004), available at http://www.gao.gov/new.items/d04353r.pdf) (identifying 1138 statutory

provisions turning on marital status).

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2012] THE REACTIONARY ROAD TO FREE LOVE 217

Bearing its socially significant communicative function in mind, this

Part focuses on state recognition of civil marriage under the law and the

arguments for and against extending such recognition to same-sex couples.

Section A provides a brief overview of the history of state recognized marriage,

describing dramatic changes over time in who could marry and the rules and

consequences marriage entailed. Section B recounts the story of covenant

marriage, arguing that its limited popularity contrasts with popular enthusiasm

for “defending” marriage from same-sex couples to demonstrate the anti-gay

nature of the latter. It also shows that covenant marriage set a legal precedent

for experimentation with state-recognized alternatives to marriage, blazing the

trail for the more popular marriage light options to follow. Section C describes

the parallel debates regarding same-sex marriage on the left and the right; it

concludes that extending the conservative institution of marriage to same-sex

couples is a conservative move. Finally, Section D provides a brief introduction

to the history of U.S. state political movement on the issue of same-sex

marriage, marriage light compromise, and constitutional marriage amendments,

using Hawaii as the trailblazing example. These themes will be explored in

more detail in Parts III and IV.

A. A Brief History of the Evolving Institution of Marriage

Opponents of same-sex couples often assert that marriage is an ancient

institution that has survived millennia and that should not be subject to modern

experimentation.

Of course, it is true that the concept of marriage has ancient

origins. However, there are few legal concepts whose content has changed

more over time.

Marriage in continental Europe was largely a matter of private

agreement and custom until the Catholic Church asserted control in the

thirteenth century, eventually requiring that priests officiate marriages in

1563.

English marriages, too, originally fell largely within the purview of

See, e.g., Justin T. Wilson, Preservationism, or the Elephant in the Room: How Opponents

of Same-Sex Marriage Deceive Us Into Establishing Religion, 14

DUKE J. GENDER L. & POL’Y

561, 569 n.37 (2007) (quoting numerous statements of federal senators and members of Congress

to this effect in the 2006 legislative record).

The meaning and purposes of marriage vary greatly over space as well as time. See

generally S

TEPHANIE COONTZ, MARRIAGE, A HISTORY: HOW LOVE CONQUERED MARRIAGE 24–33

(2005) (describing some of the many variations in societal expectations of marriage, including

polygamy, consanguinity, and whether couples should live together or separately, eat together or

separately, share resources or not, or share responsibility for children or not). The brief history

recounted here focuses on European and American marriage over the last 2000 years.

F.C. DeCoste, Courting Leviathan: Limited Government and Social Freedom in Reference

Re Same-Sex Marriage, 42

ALTA. L. REV. 1099, 1112 (2005); Judith E. Koons, “Just” Married?:

Same-Sex Marriage and a History of Family Plurality, 12

MICH. J. GENDER & L. 1, 38–39 (2005).

Prior to the referenced decree Tametsi at the Council of Trent, the Church had apparently

recognized a forbearer of modern common law marriages. For instance, in the Twelfth Century,

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218 WEST VIRGINIA LAW REVIEW [Vol. 115

private custom and religious cannon law.

But the state finally asserted

monopoly control in the 1753 Act for the Better Preventing of Clandestine

Marriages, declaring marriages null and void if not preceded either by issuance

of an official ecclesiastical license or the publishing of banns in the Anglican

Church.

The legal attributes of marriage in the eighteenth and nineteenth

centuries were still dramatically different from those we take for granted today.

It combined with criminal law to discipline human sexuality to such an extent

that it sometimes could be compared to criminal punishment for both spouses.

Professor Mary Anne Case describes the eighteenth century English state’s

view of a marriage license as “loosely analogous to a modern dog license . . .

something like a certificate of ownership of the wife.”

One early-nineteenth

century American judge used a peculiarly American analogy instead, observing

that “the condition of a slave resembled the connection of a wife with her

husband, and of infant children with their father. He is obliged to maintain

them, and they cannot be separated . . . .”

Long after the American Revolution, lawyers and judges in the U.S.

still conceptualized marriage under the English common law doctrine of

coverture.

Echoing the Biblical idea that a married couple shall become “one

Pope Alexander III clarified the canon law view of marriage as a private contract, declaring that

“a contract by words or present consent” sufficed to form a valid marriage. Case, supra note 50,

at 1766.

DeCoste, supra note 57, at 1113.

Case, supra note 50, at 1767. The publishing of banns involved a public announcement,

repeated on three consecutive Sundays to confirm that there is no impediment to the couples’

marriage. Thomas M. Franck, Legitimacy in the International System,

82 AM. J. INT’L L. 705, 728

(1988).

Melissa Murray, Marriage as Punishment, 112 COLUM. L. REV. 1 (2012).

Case, supra note 50, at 1768. Later, it was also a license to have legal sex because criminal

laws prohibited fornication, adultery, oral and anal sex, bestiality, and even access to

masturbatory aids and pornography. Id. at 1769.

Winchendon v. Hatfield, 4 Mass. 123, 129 (1808). Ironically, this comparison did not

apply to marriages between slaves themselves. While slaves could not be legally separated from

their masters, slave husbands and wives were routinely separated against their will under a

regime where neither church nor state recognized their marriages. See infra notes 73–74 and

accompanying text.

See Ellen Dannin, Marriage and Law Reform: Lessons from the Nineteenth-Century

Michigan Married Women’s Property Acts, 20 T

EX. J. WOMEN & L. 1, 5–6 (2010) (listing state

acts enacted in the mid-nineteenth century that made it possible for married women to own their

own property); Suzanne D. Lebsock, Radical Reconstruction and the Property Rights of Southern

Women, 43 J.

S. HIST. 195, 209 (1977) (relating how “Georgia wives were not granted legal

control over their own earnings until 1943”).

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2012] THE REACTIONARY ROAD TO FREE LOVE 219

flesh,” coverture meant that the identity of a wife and husband merged into one

when they married.

Romantic as this union may sound, it could actually resemble climbing

into a horse costume where the husband was always the head. Blackstone

described the legal result of marriage under English law as “one person in law:

that is, the very being or legal existence of the woman is suspended during the

marriage, or at least is incorporated and consolidated into that of the husband

under whose wing, protection and cover, she performs every thing.”

While the wife initially had to consent to the marriage contract in order

for it to be valid, that one-time agreement bound her to all of the non-

negotiable rules of marriage, greatly limiting her choices thereafter.

She could

not sue or be sued for a personal injury in her own name.

She could not

contract on her own with a third party.

If she “misbehaved,” her husband

could restrain her physically “by domestic chastisement, in the same

moderation that a man is allowed to correct his servants or children.”

married man controlled any property his wife brought into the marriage.

Courts even recognized a marital exception to rape laws, reasoning that “by

their mutual matrimonial consent and contract the wife hath given up herself in

this kind unto her husband, which she cannot retract.”

The theory of a

See Ephesians 5:22 (King James) (“Wives submit yourselves unto your husbands, as unto

the Lord. For the husband is the head of the wife, even as Christ is head of the church . . . .”).

1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 430 (2d ed. 1765)

(emphasis in original).

Id. at 427–28 (a “good civil marriage” required that both parties be willing and able “to

contract” the marriage).

Id. at 431.

Id. at 432 (“[A]ll deeds executed and acts done, by her, during her coverture, are void, or at

least voidable . . . .”)

Id.

2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 433 (2d ed. 1766). A

husband gained absolute title and dispositional authority with regard to his wife’s personal

property “with the same degree of property and with the same powers, as the wife, when sole,

had over them.” Id. However, he only gained title to the rents and profits of her real estate during

the coverture. Id.

1 SIR MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 628 (Robert H. Small

1847) (1736); see also Commonwealth v. Fogerty, 74 Mass. 489, 491 (1857) (recognizing that

evidence of marriage constituted a defense against charges of raping one’s wife in the process of

holding that a rape indictment need not affirm the victim and rapist are not married because a

husband could be convicted as a principal in the second degree for assisting another man to rape

his wife); People v. Meli, 193 N.Y.S. 365, 366 (1922) (holding that a man cannot be guilty of

raping his wife, but may be found guilty of rape if he encouraged another man to rape her

because the determining factor is who performed the rape act itself); State v. Twyford, 186

N.W.2d 545, 547 (S.D. 1971) (“[T]he rule in South Dakota should be that nonmarriage of the

prosecutrix to the perpetrator of the sexual act is an essential ingredient of the crime . . . .”); Jill

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220 WEST VIRGINIA LAW REVIEW [Vol. 115

husband’s control over his wife was so strong that a woman could not be

convicted of a crime like theft or burglary if her husband had commanded her

to do it.

In addition to the subordination of married women, there were some

women and men who could not marry at all. American slaves were not allowed

to be married by state or church.

Even after the abolition of slavery,

interracial marriages were widely prohibited, forming the basis for criminal

prosecution and, in some cases, the loss of U.S. citizenship.

Fortunately, the meaning of “marriage” has changed radically over the

last 200 years.

Today, married women retain their legal personalities. They

can own private property and sign binding legal contracts. Unlike their

forefathers, married men no longer have a categorical right to beat

or rape

their own wives.

By 1967, a unanimous U.S. Supreme Court found laws

proscribing interracial marriage to be unconstitutional.

Now men and women

can marry regardless of race without fear of prosecution or loss of U.S.

Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REV. 1373,

1396–97 (2000).

4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 28–29 (1770).

Darlene C. Goring, The History of Slave Marriage in the United States, 39 J. MARSHALL L.

REV. 299, 299, 310–11 (2006). Because slaves were viewed as chattels, slave codes prohibited the

issuance of marriage license to slaves, prohibited clergy from performing marriage ceremonies

for them, and allowed slave owners to separate families by selling off either spouse or their

offspring with impunity. Id. at 306–08.

See, e.g., Toshiko Inaba v. Nagle, 36 F.2d 481, 481–82 (9th Cir. 1929) (where a wife lost

her U.S. citizenship because of her marriage to a Japanese man); State v. Jackson, 80 Mo. 175,

179 (1883) (upholding criminal prosecution of interracial marriage under the Fourteenth

Amendment, finding sufficient grounds for interfering with the interracial “taste” of potential

spouses based on the slippery slope to consanguinity and the “well authenticated fact that if the

issue of a black man and a white woman, and a white man and a black woman, intermarry, they

cannot possibly have progeny”); Naim v. Naim, 87 S.E.2d 749, 755–56 (Va. 1955) (pointing out

that “[i]t is the considered opinion of the people of more than half the States . . . that the

prohibition against miscegenetic marriages is a proper governmental objective” of preserving

“racial integrity” and avoiding “a mongrel breed of citizens”). See also Scott C. Titshaw, The

Meaning of Marriage: Immigration Rules and Their Implications for Same-Sex Spouses in a

World Without DOMA, 16

WM. & MARY J. WOMEN & L. 537, 574 (2010).

See Jessica Feinberg, Exposing the Traditional Marriage Agenda, 7 NW. J. L. & SOC. POL’Y

301, 306–34 (2012) (describing the eventual rejection of traditional marriage requirements:

permanence, gender roles, procreation, and monogamy).

See supra note 69 and accompanying text.

Hasday, supra note 71, at 1381, 1388. However, Hasday has persuasively argued that

reform of the marital rape exemption has only been fragmentary, cataloguing the way that marital

rape is still treated as a special category of rape. Id. at 1380, 1484–85. She concludes that

“[v]irtually every state legislature has revisited the marital rape exemption over the last” quarter

of the twentieth century, “but most have chosen to preserve the exemption in some substantial

manifestation.” Id. at 1375.

Loving v. Virginia, 388 U.S. 1 (1967).

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2012] THE REACTIONARY ROAD TO FREE LOVE 221

citizenship. Every state has enacted divorce laws and eventually liberalized

them to recognize some form of no-fault divorce.

States now also recognize

the possibility of unilateral divorce without the consent of both spouses.

Clearly, marriage has evolved dramatically since churches and states

first became involved. The continuing liberalization over time of rules for

determining who could marry whom and the legal consequences of marriage

has been so pronounced that one of the most constant aspects of marriage has

been its flexibility to adapt to social change.

B. The Movement for Covenant Marriage

As marriage and divorce laws were liberalized, divorce and single

parenting became increasingly common. Blaming the resulting harm to children

on no-fault divorce, some traditionalists advocated its repeal along with other

changes to “strengthen” marriage.

But more strict divorce requirements are

not popular.

Charles P. Kindregan, Jr., Same-Sex Marriage: The Cultural Wars and the Lessons of

Legal History, 38

FAM. L. Q. 427, 438 (2004); Joel A. Nichols, supra note 18, at 938–39 (tracing

the history of no-fault divorce from its inception when then-Governor Ronald Reagan signed

California’s ground-breaking law in 1969 until its adoption by South Dakota in 1985).

Joel A. Nichols, supra note 18, at 938 (describing California’s pioneering law, which

recognized unilateral no-fault divorce on demand).

Opponents of same-sex marriage might point out that Americans have refused to allow

marriage to evolve to include polygamy. However, this does not necessarily undermine the

argument that marriage evolves to meet changing societal conditions and that unforeseen

consequences threaten to undermine it when it does not. Although its Mormon incarnation was a

significant issue in nineteenth century America, polygamy was actually an often reviled ancient

institution that ran counter to a strong modern current in American society, the growing equality

of women. Alternatively, conservatives who believe men require domestication might argue that

polygamy would give some restless husbands (and single women) an outlet to stem some of the

adultery and divorce they bemoan. See infra Part II.C.2.

See Katherine Shaw Spaht, Revolution and Counter-Revolution: The Future of Marriage in

the Law, 49

LOY. L. REV. 1, 45 (2003) (describing unsuccessful attempts of Louisiana legislators

to use an unwilling Louisiana Law Institute to justify their desire to generally reinstate fault as a

prerequisite to divorce); Barbara Dafoe Whitehead, Dan Quayle was Right, T

HE ATLANTIC, Apr.

1, 1993, at 71 (suggesting several options to improve marriage including a reemphasis on fault

principles in divorce, a two-tiered divorce law that treats spouses with minor children differently,

a “children first” focus in divorce law, bonuses for women who marry, and publically supported

children’s educational television, among other ideas). But see Deborah L. Rhode, To Fault or Not

to Fault, N

AT’L L.J., at A19 (May 13, 1996) (arguing that “changes in the divorce law were the

response, not the cause of changes in peoples’ attitudes and behaviors”); Anya Sostek, Census

Sees Marriages Surviving, Divorces Declining, P

ITT. POST-GAZETTE, May 23, 2011, at A1,

available at 2011 WLNR 10241143 (citing scholars who point to various other contributing

factors for the early 1980s peak in divorce rates, including pent-up demand at the time when

divorce became easier, changes in the power dynamic and expectations of men and women

within existing marriages, and increased health and life expectancies that make people less likely

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222 WEST VIRGINIA LAW REVIEW [Vol. 115

Faced with a lack of support for reinstituting mandatory fault

requirements for divorce, some traditionalists suggested an optional heavy form

of marriage for couples who freely choose to be bound extra-tight.

In 1997,

Louisiana became the first state to enact a law creating these “covenant

marriages,” which essentially allow couples to opt for the 1938 version of

divorce law (requiring serious fault or long separation) plus new modern

requirements of pre-marital and pre-divorce counseling.

Politicians in many

other states introduced similar legislation, but covenant marriage was only

adopted by Arizona (1998) and Arkansas (2001).

With the exception of politicians and a few “family values” activists,

the covenant marriage movement has not caught on.

Only one to two percent

to just stick out an unhappy marriage until someone dies). See also Joel A. Nichols, supra note

18, at 940–43 (discussing various arguments on whether no-fault divorce is problematic)

See Spaht, supra note 82, at 49. Spaht, an early advocate of Louisiana’s covenant marriage

law, attributed the political success of some covenant marriage bills to their optional character,

only binding those couples who chose to be bound. Id.; see also Kevin Allman, Covenant

Marriage Laws in Louisiana, G

AMBIT WKLY. (Mar. 2, 2009), http://

www.bestofneworleans.com/gambit/covenant-marriage-laws-in-louisiana/Content?oid=1252802

(quoting Spaht’s comment that the final Louisiana covenant marriage law “‘is more liberal than

the one we introduced, but you have to compromise in the political process’”).

LA. REV. STAT. ANN. §§ 9:272–274, § 9:307 (2011); Cynthia Samuel, Letter from

Louisiana: An Obituary for Forced Heirship and a Birth Announcement for Covenant Marriage,

TUL. EUR. & CIV. L.F. 183, 191 (1997) (“Except for the counseling requirements and changes

adding physical abuse and abandonment as grounds for divorce, the rules for dissolving a

covenant marriage are almost identical to those for dissolving a marriage in Louisiana that were

in effect from 1938 to 1979.”); Ed Anderson, La. Couples Say, ‘I Don’t’ to Covenant Marriages:

99 Percent Opting for Standard Marriage, T

IMES-PICAYUNE, Aug. 11, 2009, at 2, available at

2009 WLNR 15496593 (only adultery, abuse, abandonment or a two-year separation are

recognized bases for terminating a Louisiana covenant marriage). Long before Spaht and others

called for covenant marriage in Louisiana and other U.S. states, France seriously considered the

idea of an optional form of indissoluble marriage in the late 1940s. Samuel, supra, at 191–92.

While many people agree that pre-marital counseling is a good idea, there is evidence that

counseling during marriage actually triples the number of couples that proceeded to divorce

afterwards. S

TEVEN L. NOCK, LAURA ANN SANCHEZ & JAMES D. WRIGHT, COVENANT MARRIAGE:

THE MOVEMENT TO RECLAIM TRADITION IN AMERICA 122 (2008).

Alan J. Hawkins & Tamara A. Fackrell, Covenant Marriage: The Movement to Reclaim

Tradition in America, 71

J. MARRIAGE & FAM. 804 (2009), available at

http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3737.2009.00635.x/pdf (reviewing N

OCK,

supra note 84); see A

RIZ. REV. STAT. ANN. §§ 25-901–25-906 (2012); ARK. CODE ANN. §§ 9-11-

801–9-11-810 (2012).

‘06 Marriage Quickly Failed, ARIZ. REPUBLIC, March 8, 2011, at A6, available at 2011

WLNR 4513444 (describing the brief covenant marriage of Arizona Senate Majority Leader

Scott Bundgaard, which ended during his honeymoon when his wife called the police to ask for

protection from her new husband); Pam Bordelon, Covenant Marriage a La. Option Most Ignore,

ATON ROUGE ADVOC., Feb. 14, 2009, at E1, available at 2009 WL 2983406 (describing the

covenant marriages of Louisiana Governor Bobby Jindal, State Rep. Tony Perkins—sponsor of

the Louisiana bill and later President of the Family Research Council—and several other

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2012] THE REACTIONARY ROAD TO FREE LOVE 223

of Louisiana couples opt for covenant marriages.

They are even less popular

in Arizona and Arkansas.

Apparently, the passionate popular “defense” of

marriage from lesbians and gay men does not extend to efforts directly

affecting different-sex couples.

As one covenant marriage enthusiast

explained seven years ago, their movement “did stall a bit. The debate over

same-sex marriage has taken a lot of attention.”

The lack of enthusiasm for covenant marriage indicates that many

political opponents of same-sex marriage are more opposed to same-sex

couples than interested in “defending” different-sex marriage.

As Kathleen

advocates of covenant marriage); Rick Lyman, Trying to Strengthen an “I Do” with a More

Binding Legal Tie, N.Y.

TIMES, Feb. 15, 2005, at A1 (describing the covenant marriage

“upgrade” of Arkansas Governor Mike Huckabee and his wife of thirty-one years before a crowd

of 5,000 constituents); Marriage Issues—Family Law, N

AT’L CONF. ST. LEGISLATURES, http://

www.ncsl.org/issues-research/human-services/marriage-issues-family-law.aspx (last visited Oct.

19, 2012) (see “Covenant Marriage” subcategory).

Anderson, supra note 84, at 2 (between 1997 and 2007, only 1.05% of new Louisiana

marriages were covenant marriages). Some covenant marriage advocates point out that

“upgrades” are not included in Louisiana and Arkansas estimates and opine that another two to

three percent of married couples may be later converting their already successful marriages to the

form of a covenant marriage. See id.; Bordelon, supra note 86, at E1 (quoting the three to four

percent estimate of Gene Mills, executive director of Family Forum). However, one could also

argue that the number might be smaller if it were not for the religious leaders who refuse to

perform standard marriages for their parishioners and residents of the other forty-seven states

who may enter a covenant marriage in the three states where it is possible. Hawkins & Fackrell,

supra note 85, at 806 (stating that “[a] few religious ministers in Louisiana have said they will

only marry couples if they agree to get a covenant marriage”); Cheryl Wetzstein, Covenant

Marriage Keeps More Couples Together, W

ASH. TIMES, Sept. 7, 2008, at M20, available at 2008

WLNR 16978470 (pointing out that “anyone” can choose a covenant marriage “by marrying in

Louisiana, Arizona or Arkansas”); see also Lyman, supra note 86, at A1.

Aaron Sharockman, Alan Grayson Says Opponent Wants to Make Divorce Illegal in

Stinging New Ad, S

T. PETERSBURG TIMES, Sept. 28, 2010, available at 2010 WLNR 19347328

(from 2002–2007, only 0.6% of all new marriages in Arkansas were covenant marriages);

Wetzstein, supra note 87, at M20 (apparently including “upgrades” in her estimate that around

two percent of Louisiana couples “have” covenant marriages “and even fewer have them in

Arizona and Arkansas”); Sheri Stritof & Bob Stritof, Covenant Marriage—Pros and Cons,

BOUT.COM, http://www.marriage.about.com/cs/covenantmarriage/a/covenant.htm (last visited

Sept. 8, 2012) (only one-fourth of one percent of Arizona marriages are covenant marriages

according to Scott D. Drewianka of the University of Wisconsin-Milwaukee).

See Spaht, supra note 82, at 52 (bemoaning the lackluster support for covenant marriage

from Louisiana’s Catholic and Baptist leaders).

Lyman, supra note 86, at A1 (quoting Len Munsil, President of the conservative Christian

Center for Arizona Policy). At the same time that it was pushing to prevent same-sex marriage

with a federal constitutional amendment, the George W. Bush Administration refused to take a

public position on covenant marriage because it was a state issue. Id.

This point is illustrated by contrasting lackluster conservative efforts to directly support

different-sex marriage with their passionate drive to fight any legal recognition of same-sex

couples. They and their political allies were willing to amend state constitutions and even the

federal constitution to block marriage equality for lesbians and gay men, but their efforts to wield

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224 WEST VIRGINIA LAW REVIEW [Vol. 115

Shaw Spaht, the “mother” of covenant marriage in Louisiana has lamented:

“‘There are a lot of hypocrites in this world. . . . A lot of these people

screaming about same-sex marriage? Boy, howdy, they sure know how to turn

on a dime’” when it comes to covenant marriage for different-sex couples.

Although largely rejected by the heterosexual majority, the covenant

marriage movement is highly instructive. It has demonstrated that creative

invention and compromise are as likely among regressive activists as among

progressive ones.

More significantly, covenant marriage established a “dual

system,” which featured a status parallel to standard marriage, challenging the

idea of unitary marriage and pioneering state experimentation with a cafeteria

of relationship choices for couples.

government power to directly affect different-sex marriage has been largely limited to education

and voluntary counseling, even with $150,000,000 per year of federal funding appropriated as

part of the George W. Bush Administration’s Healthy Marriage Initiative. See Spaht, supra note

82, at 66–69 (listing “successful state efforts” to promote and strengthen marriage using TANF

funds); Healthy Marriage Matters, U.S.

DEPT. OF HEALTH AND HUMAN SERVS.

http://archive.acf.hhs.gov/healthymarriage/about/factsheets_hm_matters.html (last visited Sept.

26, 2012) (describing the Healthy Marriage Initiative and showing the text of the legislation

establishing it). Most of the efforts only included education, counseling, and research. Id.

However, Oklahoma apparently initiated a marriage-mentoring program, and West Virginia

actually paid married couples an extra bonus welfare check. See Spaht, supra note 82, at 66–69;

see also Allman, supra note 83, at 13 (listing prominent cultural conservatives including Sarah

Palin, Rick Warren, Rush Limbaugh, Bill O’Reilly, and Sean Hannity, who did not take a public

position on covenant marriage although many of them have led a very public charge against

marriage equality for lesbians and gay men).

Allman, supra note 83, at 13.

The word “regressive” is not intended to be pejorative here, but to indicate a desire to

return to a preferred past state of marriage, rather than a “conservative” desire measured by the

current status quo.

This legacy would clearly horrify the early proponents of covenant marriage, like Spaht,

the mastermind behind Louisiana’s covenant marriage law, who has passionately attacked same-

sex civil unions and domestic partnerships as a “devastating legal assault on marriage.” Spaht,

supra note 82, at 24–25 (quoting John Leo, Unrelenting Assault Against Marriage, W

ASH.

TIMES, Dec. 16–22, 2002 (Nat’l Weekly), at 32). But the link has been noted by various

commentators. See, e.g., Emitai Etzioni & Robert P. George, Virtue and the State: A Dialogue

Between a Communitarian and a Social Conservative, T

HE RESPONSIVE COMMUNITY, Spring

1999, at 54, 61, available at http://www2.gwu.edu/~ccps/etzioni/M34.pdf (pointing out that the

very idea of elective “supervows” stemmed from his side of the debate specifically because it

tended in the desirable direction of greater choice). The Louisiana law was enacted during July

1997, the same month when Hawaii’s groundbreaking Reciprocal Beneficiary law became the

first U.S. state experiment with marriage light. See Civil Unions & Domestic Partnerships,

AT’L CONF. ST. LEGISLATURES, http://www.ncsl.org/default.aspx?tabid=16444 (last visited Oct.

20, 2012) (the Hawaiian law was enacted July 8, 1997). Given its lack of popularity, the option

of covenant marriage has probably not undermined interest in marriage in Louisiana, but it does

not appear to have increased the popularity of marriage either. In fact, Louisiana, with its

covenant marriage option, has the second-lowest level of marriage in the entire country. David

Sarasohn, The Census’ Wedding Cake: Marriage: Like Politics, Runs Short of Candidates,

ORTLAND OREGONIAN, June 5, 2011, available at 2011 WLNR 11308979.

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2012] THE REACTIONARY ROAD TO FREE LOVE 225

The covenant marriage movement was born of sincere concern about

increased divorce rates and evidence that divorce and out-of-wedlock births

were harmful to children. The percentage of marriages ending in divorce

doubled between the late 1960s and 1980, reaching a level where one in every

two marriages was expected to end in divorce.

Fortunately, more recent news

indicates that traditional family life may be less fragile than it appeared in the

1990s. Although Americans are marrying less and waiting longer before

marrying, the most recent statistics show an upside to these trends.

U.S.

divorce rates peaked from 1979 to 1981, and they have been steadily declining

ever since.

The 2010 census shows that more couples are now celebrating ten-

year, twenty-five-year, and fifty-year anniversaries.

The number of women

who marry in their teens has decreased from forty-two percent in 1970 to seven

percent in 2009.

“[D]omestic violence rates have fallen by half[,] and men

have doubled the amount of time they spend doing housework and tripled their

childcare efforts.”

100

Some of these American trends are reflected in other

economically developed nations as well.

101

ARTHUR J. NORTON & LOUISA F. MILLER, U.S. DEPT. COM., MARRIAGE, DIVORCE, AND

REMARRIAGE IN THE 1990’S, 2–5 (1992), available at http://www.census.gov/hhes/socdemo/

marriage/data/cps/p23-180/p23-180.pdf.

See More Married Couples Make 10th Anniversary, CHI. SUN-TIMES, May 24, 2011, at 20,

available at 2011 WL 10318841 (describing the increase in median age of first marriage from

twenty-three for men and twenty for women in 1950 to twenty-eight for men and twenty-six for

women today); Sostek, supra note 82, at A1 (noting that only a quarter of women between

twenty-five and twenty-nine years old had not yet married in 1986, compared to nearly half of

women the same age in 2009); Carol Morello, Number of Long-Lasting Marriages in U.S. Has

Risen, Census Bureau Reports, W

ASH. POST (May 18, 2011),

http://www.washingtonpost.com/local/number-of-long-lasting-marriages-in-us-has-risen-census-

bureau-reports/2011/05/18/AFO8dW6G_story.html (“Nearly a third of adults never marry at all.

That number has marched upward in every age group over the past decade and a half.”). More

disturbing, marriage seems to correlate increasingly with wealth, class and education. See Jason

DeParle, Two Classes, Divided by “I Do,” N.Y.

TIMES, July 15, 2012, at A1.

Sostek, supra note 82, at A1. The age demographics of the census apparently reinforce the

trend of decreasing divorce rates since the rate among forty to forty-four years old was almost

five percent less than those fifty-five to fifty-nine years old. Id.

Long-Lasting Marriages on the Rise, BOSTON GLOBE, May 19, 2011, at 2, available at

2011 WL 9941853 (describing the increase between 1996 and 2009 of one to two percent in

silver and golden anniversaries); Morello, supra note 96 (there are now three percent more ten-

year anniversaries than in the early 1980s).

DIANA B. ELLIOTT & TAVIA SIMONS, U.S. DEPT. COM., MARITAL EVENTS OF AMERICANS:

2009, at 13 (2011), available at http://www.census.gov/prod/2011pubs/acs-13.pdf.

100

Sostek, supra note 82, at A1.

101

See WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR BETTER OR

FOR

WORSE? 173–97 (noting that out-of-wedlock births and divorce rates among Scandinavian

different-sex couples stabilized or began to decline in the late 1980s and early 1990s); OECD,

SF3.1: MARRIAGE AND DIVORCE RATES 1, 4 (2011), available at

http://www.oecd.org/els/familiesandchildren/40321815.pdf (noting a significant crude marriage

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226 WEST VIRGINIA LAW REVIEW [Vol. 115

Today, interest in covenant marriage appears to have waned. Tony

Perkins, the original sponsor of Louisiana’s covenant marriage law,

acknowledges that, “[i]n public policy, fashions come and go. I think the

season for covenant marriage . . . the novelty has kind of worn off.”

102

However, the novelty of movements for same-sex marriage and marriage light

does not appear to have worn off—at least not in a negative way.

C. The Debate Over Same-Sex Marriage Equality

Marriage equality for same-sex couples has gone from an absurdist

mid-century fantasy to a realistic, popular position, accepted by several states

and half the U.S. population.

103

A clear majority supports same-sex civil

unions,

104

and some jurisdictions now recognize a choice of options for both

same- and different-sex couples.

105

The ideas of same-sex marriage and even cafeteria options for marriage

are not as novel as some may think. A number of Asian,

106

American,

107

and

rate decrease since 1970 in almost all OECD and E.U. countries, while also pointing out that the

decrease has been leveling off in countries like Denmark and Sweden where the rates were

already relatively low and noting increasing divorce rates in OECD countries, but a slight

increase in the duration of marriage to divorce in a number of developed countries); Marriage

and the State: A Ménage À Trois, E

CONOMIST, Jan. 23, 2010, at 28 (“[T]he present divorce rate,

at its lowest in England and Wales since 1981, may be attributed to the fact that only the hard-

core are still getting married in the first place.”) [hereinafter Marriage and the State]; Marriages,

Divorces Germany, D

STATIS, https://www.destatis.de/EN/FactsFigures/Indicators/

LongTermSeries/Population/lrbev06.html (last visited Oct. 13, 2012) (official figures of the

German federal statistical office showing that marriage rates decreased significantly from 1950

until they seemed to level off over the last decade, while divorce rates seem to have generally

leveled off in the early 1980s).

102

Allman, supra note 83, at 13.

103

See infra notes 190–194 and accompanying text. See also Frank Newport, For First Time,

Majority of Americans Favor Legal Gay Marriage, G

ALLUP (May 20, 2011),

http://www.gallup.com/poll/147662/first-time-majority-americans-favor-legal-gay-

marriage.aspx.

104

See, e.g., Washington Post/ABC News Poll: Question 32, WASH. POST, -

http://www.washingtonpost.com/wp-srv/politics/polls/postpoll_021010.html (last visited Oct. 20,

2012) (reporting that sixty-six percent of adults surveyed favored legally recognized civil

unions); Law and Civil Rights, P

OLLINGREPORT.COM, http://pollingreport.com/civil.htm (last

visited Oct. 13, 2012) (reporting on CBS News/New York Times polls indicating sixty-two

percent approval of either marriage equality or same-sex civil unions in April and May 2012).

105

See infra notes 199, 475–482 and accompanying text.

106

See JOHN BOSWELL, SAME-SEX UNIONS IN PREMODERN EUROPE xxvi (1994); BRET HINSCH,

ASSIONS OF THE CUT SLEEVE (1990), reprinted in SULLIVAN, supra note 6, at 23.

107

See BOSWELL, supra note 106, at xxvi; WILL ROSCOE, THE ZUNI MAN-WOMAN 26–27

(1991); W

ALTER L. WILLIAMS, THE SPIRIT AND THE FLESH (1986), reprinted in SULLIVAN, supra

note

6, at 35; Maurice Kenny, Tinselled Bucks: A Historical Study in Indian Homosexuality, in

IVING THE SPIRIT: A GAY AMERICAN INDIAN ANTHOLOGY (W. Roscoe ed., 1988).

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2012] THE REACTIONARY ROAD TO FREE LOVE 227

African

108

cultures have recognized and institutionalized same-sex unions at

various times. There is evidence that the ancient Greeks recognized four types

of same-sex unions as well as two types of different-sex marriage and various

other categories of different-sex union.

109

The late Yale historian John Boswell

cited extensive support for his thesis that same-sex civil unions were even

recognized in the church-dominated rules of medieval Europe.

110

Later, at a time when Christian states developed rules defining

marriage largely in terms of the different legal and social roles played by men

and women, the notion of same-sex marriage might have seemed nonsensical to

most people. How could two equal individuals possibly enter a relationship that

was so dependent on unequal gender roles and the coverture of women by

men? Same-sex marriage seems much less radical today when women’s and

men’s roles in marriage are not necessarily predetermined.

Even in the age of coverture when sodomy was viewed as an

unspeakable crime of “deeper malignity” than rape,

111

some gay people desired

to marry one another. In 1862, a German intellectual named Karl Heinrich

Ulrichs insisted that there are natural gay marriages, despite their lack of legal

recognition.

112

In 1906, the pioneering sexologist Auguste Forel recorded, as a

“peculiar and characteristic phenomenon,” that many homosexuals exhibited an

“ardent desire . . . to become secretly engaged or married to the abnormal

108

See BOSWELL, supra note 106, at xxvi; Melville J. Herskovits, A Note on “Woman

Marriage” in Dahomey, 10 A

FRICA 335 (1937), reprinted in SULLIVAN, supra note 6, at 32.

109

BOSWELL, supra note 106, at 28–107.

110

Id. at 218–61. Boswell describes the veneration of “coupled saints” such as Serge and

Bacchus, as well as various medieval same-sex rites. Id. He compares these unions to their

ancient predecessors and to different-sex unions of the same period. Id. In addition to the

language of Catholic and Orthodox liturgies, he focuses on contemporaneous accounts of same-

sex unions in many areas of Europe. Id.

111

Bowers v. Hardwick, 478 U.S. 186, 197 (1986) (Burger, C.J., concurring) (“Blackstone

described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a

heinous act ‘the very mention of which is a disgrace to human nature,’ and ‘a crime not fit to be

named.’”) (citation omitted).

112

Letter from Karl Heinrich Ulrichs to his Sister (Sept. 22, 1862), in 1 JAHRBUCH FÜR

SEXUELLE

ZWISCHENSTUFEN UNTER BESONDERER BERÜCKSICHTIGUNG DER HOMOSEXUALITÄT

[YEARBOOK FOR SEXUAL INTERMEDIARIES WITH PARTICULAR CONSIDERATION OF

HOMOSEXUALITY] 39–46 (1899). The Jahrbuch in question was the first volume of a series of

scholarly journals published annually from 1899 until 1923 by the Scientific-Humanitarian

Committee of Berlin and Leipzig, Germany. Pioneering sexologist Magnus Hirschfeld founded

the Committee in 1897, and it is widely regarded as the world’s first modern “gay rights”

organization. Originally sent to his sister and other family members at the time of the U.S. Civil

War, Ulrichs’s German-language coming out letters exhibit a very modern sense of pride and

resolute self-confidence about his sexuality. Except for the common nineteenth century ideas of

homosexuals as a “third sex,” these letters could have been written by a gay man to his troubled

family at the turn of the twenty-first century. See A

RMISTEAD MAUPIN, MORE TALES OF THE CITY

221–23 (Harper Perennial ed. 1998).

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228 WEST VIRGINIA LAW REVIEW [Vol. 115

homosexual object of their love.”

113

While he dismissed the possibility of legal

same-sex marriage, Forel expressed sympathy for the idea of its private

celebration, arguing that “the real crime” is the “social monstrosity” of gay men

marrying heterosexual women as directed by “ignorant,” old-fashioned (in

1906!) professionals attempting to “cure” homosexuality.

114

This Section will illustrate the different American debates about same-

sex marriage, all beginning with the common assumption that marriage is an

innately conservative institution. Subsection One describes the debate among

feminists and gay rights activists on the left, pitting egalitarian proponents of

marriage equality against those who find this conservative institution so flawed

that it should be de-emphasized or abolished entirely. Subsection Two

describes the parallel debate between conservatives who oppose same-sex

marriage and those who favor it because they argue it will have a stabilizing

effect on both marriage and gay people. Subsection Three counters some

conservative arguments against marriage equality before pointing out the fatal

failure of anti-marriage conservatives to consider context and recognize that

same-sex marriage is clearly more conservative than its realistic alternatives.

1. The Gay and Feminist Debate About Same-Sex Marriage

Recent arguments favoring marriage equality on the left are familiar.

115

However, the idea of same-sex marriage has a long pedigree, and gay

libertarians have attacked it as a conservative move since at least the 1950s.

One magazine, the best known early “homophile” publication in the U.S.,

raised the issue of same-sex marriage in the cover essay of its August 1953

edition.

116

Questioning early activists’ search for societal acceptance and

113

AUGUST FOREL, THE SEXUAL QUESTION: A SCIENTIFIC, PSYCHOLOGICAL, HYGIENIC AND

SOCIOLOGICAL STUDY 378 (C. F. Marshall trans., Physicians & Surgeons Book Co. 1931) (1906).

114

Id. at 404, 439.

115

See, e.g., EVAN WOLFSON, WHY MARRIAGE MATTERS: AMERICA, EQUALITY, AND GAY

PEOPLE’S RIGHT TO MARRY (2004); Barbara J. Cox, But Why Not Marriage: An Essay on

Vermont’s Civil Unions Law, Same-Sex Marriage, and Separate But (Un)Equal, 25

VT. L. REV.

113 (2000); Chai R. Feldblum, Gay is Good: The Moral Case for Marriage Equality and More,

YALE J.L. & FEMINISM 139 (2005); E.J. Graff, Retying the Knot, THE NATION, June 24, 1996,

at 12, reprinted in

SAME-SEX MARRIAGE: PRO AND CON, supra note 6, at 134.

116

E.B. Saunders, Reformer’s Choice: Marriage License or Just License?, ONE, Aug. 1953, at

10, available at http://www.queermusicheritage.us/jun2008one.html. In the 1950s, One played an

important role in the U.S. gay rights movement when it posed a legal challenge to the accepted

post office practice of censoring publications exhibiting non-critical views of homosexuality.

Thanks to a new standard adopted in Roth v. U.S., 354 U.S. 476, 489 (1957), the U.S. Supreme

Court reversed the Ninth Circuit holding that at least one edition of the magazine was

“nonmailable.” One, Inc. v. Otto Olesen, 241 F.2d 772 (9th Cir. 1957), rev’d per curiam, 355

U.S. 371 (1958). See also J

OYCE MURDOCH & DEB PRICE, COURTING JUSTICE: GAY MEN AND

LESBIANS V. THE SUPREME COURT 27–50 (2002) (describing the story surrounding One, Inc.). The

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2012] THE REACTIONARY ROAD TO FREE LOVE 229

equality, the author foresaw that “equal rights means equal responsibilities . . .

[and] limitations” including same-sex marriage and monogamy.

117

In mid-twentieth century America, with its criminal sodomy laws and

anti-gay witch hunts, many readers found the issue of same-sex marriage

absurdly unrealistic.

118

Those who took the idea seriously did not like it at all.

Objecting to the specter of marital limitations on sexual freedom, one reader

asserted that “humanity would be better off if more people were rebellious

enough to demand more freed[o]m. How good are our beliefs and codes and

morals and ethics if we must forever cry for laws to force us to keep faith with

them.”

119

Even the cover essay’s author appeared to find the constraining

equality of acceptance and marriage equality undesirable in the end because it

would “cause as great a change in homosexual thinking as in heterosexual—

perhaps greater,” including “necessary homosexual monogamy.”

120

Feminists and gay rights activists on the left have echoed this sentiment

over the last generation, questioning advocacy of same-sex marriage because it

would shore up one of our society’s most conservative institutions.

121

As Paula

Ettelbrick famously argued in 1989, “marriage will not liberate us as lesbians

and gay men . . . [i]t will constrain us, make us more invisible, force our

assimilation into the mainstream, and undermine the goals of” affirming lesbian

and gay identity and culture and validating many different forms of

relationships.

122

While the movement for marriage equality has gained greater

acceptance on the left since 1989, many left-leaning intellectuals would still

prefer to either abolish legal recognition of marriage or to end its monopoly and

establish a menu of alternatives to it.

123

August 1953 edition containing the marriage opinion piece had also been held up for three weeks

until postal employees determined that it was mailable. Id. at 29.

117

Saunders, supra note 116, at 12.

118

R.H. Karcher, Letter to the Editor, ONE, Oct. 1953, available at

http://www.queermusicheritage.us/jun2008one.html.

119

Id.

120

Saunders, supra note 116, at 12.

121

See, e.g., Suzanne A. Kim, Skeptical Marriage Equality, 34 HARV. J.L. & GENDER 37

(2011); Murray, supra note 60, at 7 n.20; Edward Stein, Marriage or Liberation?: Reflections on

Two Strategies in the Struggle for Lesbian and Gay Rights and Relationship Recognition, 61

RUTGERS L. REV. 567 (2009); Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for

Lesbians and Gay Men and the Intra-Community Critique, 21

N.Y.U. REV. L. & SOC. CHANGE

567, 582–87 (1995); Chris Geidner, Domestic Disturbance: Before DOMA, There Was Another

Debate Over Marriage—Within the Gay and Lesbian Community, M

ETRO WEEKLY (May 4,

2011), http://www.metroweekly.com/feature/?ak=6213.

122

Ettelbrick, supra note 6, at 14.

123

See Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families &

Relationships, B

EYONDMARRIAGE.ORG (July 26, 2006), http://www.beyondmarriage.org/

full_statement.html (a statement favoring the vision of broader state recognition of relationships

beyond civil marriage, listing over a thousand signatories including: Judith Butler, John

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230 WEST VIRGINIA LAW REVIEW [Vol. 115

2. The Conservative Debate About Same-Sex Marriage

Marriage critics on the left and conservative voices in the marriage

debate share a basic assumption. They all recognize the conservative nature of

marriage in general. Despite the many substantial changes to the institution of

marriage, commentators and courts agree that it still performs a conservative,

stabilizing, and organizing role in society.

124

Whether this is a good thing or a bad thing, is a different question.

Ettelbrick and others on the left have focused on the history of marriage in

establishing and maintaining a capitalist patriarchy that has systematically

perpetuated existing patterns of property ownership, the dominance of men

over women, and the priority of spouses and their children over single people

and their children.

125

Conservatives tend to approve of the way marriage

promotes stability, security, caretaking, male “domestication,” and the

promotion of child welfare.

126

However, they disagree vigorously about

whether the extension of marriage to same-sex couples is a good or bad thing.

D’Emilio, Chai Feldblum, Martha Fineman, Nan Hunter, Arthur Leonard, Nancy Polikoff, Gloria

Steinem, Cornel West, and Kenji Yoshino); see also, e.g., N

ANCY D. POLIKOFF, BEYOND

(STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW (2008) (arguing to

replace a gay-rights strategy seeking the “special rights” of marriage to a “valuing-all families

strategy” that deemphasizes the import of marriage); Martha Fineman, Why Marriage?, 9

VA. J.

SOC. POL’Y & L. 239 (2001) (urging abolition of marriage as a legal category in favor of new

forms of protection for various forms of caretaker and dependent relationships); Nancy Polikoff,

Ending Marriage as We Know It, 32

HOFSTRA L. REV. 201 (2003) (arguing that diverse

relationship recognition options, while still insufficiently flexible, would be more effective than

unitary marriage at allocating rights and responsibilities); Nancy Polikoff, Equality and Justice

for Lesbian and Gay Families and Relationships, 61

RUTGERS L. REV. 529, 558 (2009) (arguing

that the optimal approach would be to reform each law individually so that it applies to those

within its purpose without ever using marriage as “the dividing line between who is in and who is

out”) [hereinafter Polikoff, Equality and Justice]; Katherine M. Franke, Marriage is a Mixed

Blessing, N.Y.

TIMES, June 24, 2011, at A25 (pointing out the downside of New York state

recognition of same-sex marriage as movement away from a more desirable menu of relationship

recognition options). In a fascinating twist, at least one opponent of same-sex marriage has called

for the abolition of civil “marriage” altogether, finding that marriage should be solely a religious

institution. Douglas W. Kmiec & Shelley Ross Saxer, Equality in Substance and in Name, S.F.

HRON. (Mar. 2, 2009, 4:00 AM), http://www.sfgate.com/opinion/article/Equality-in-substance-

and-in-name-3249218.php.

124

See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 992 (N.D. Cal. 2010) (“The state

regulates marriage because marriage creates stable households, which in turn form the basis of a

stable, governable populace.”).

125

Ettelbrick, supra note 6, at 118–24; see also supra note 123 and accompanying text. See

generally F

RANK BROWNING, THE CULTURE OF DESIRE: PARADOX AND PERVERSITY IN GAY LIVES

TODAY 134–59 (1993) (providing detailed illustrations of the developing phenomenon of chosen

family); Frank Browning, Why Marry?, N.Y.

TIMES, Apr. 17, 1996, at A23, in SULLIVAN, supra

note

6, at 132 (arguing for a more inclusive concept of family).

126

See Rauch, supra note 7, at 177–78 (naming three important purposes of marriage as

producing and raising children, domesticating men, and providing caregivers); see also Dale

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2012] THE REACTIONARY ROAD TO FREE LOVE 231

Some conservatives, particularly those motivated by traditional

religious belief systems, still view homosexuality as a choice—a choice that

should be actively discouraged.

127

Although they do not all call for

reinstatement of criminal sodomy laws,

128

they do argue that homosexuality

should still be morally condemned and certainly not legally accepted in the

form of same-sex marriage.

129

The logic behind this thinking is that same-sex

marriage will lead more people to make the morally wrong “choice” to be gay

or, at least, to act on gay desires.

130

Some even seem to believe that recognition

Carpenter, Gay Marriage in the Conservative Movement: Transcript: A Traditionalist Case for

Gay Marriage, 50

S. TEX. L. REV. 93, 97–102 (2008) (pointing to the purposes of parental

stability, private care-giving that reduces demand for state resources, as well as promotion of

monogamy, conformity and social responsibility); Andrew Sullivan, Here Comes the Groom,

HE NEW REPUBLIC, Aug. 28, 1989, at 20 (asserting that marriage promotes the goals of social

cohesion, economic security, and nurturing children).

127

E.g., Lofton v. Sec’y of Dep’t of Children and Family Servs., 358 F.3d 804 (11th Cir. Fla.

2004) (finding a categorical bar on adoption by “practicing homosexuals” to be rational, based on

the assumption that lesbian and gay men who have sex are less qualified to parent children); H.R.

REP NO. 104-3396, at 15 n.53 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2919 n.53

(“Maintaining a preferred societal status of heterosexual marriage thus will also serve to

encourage heterosexuality . . . .”); 142 C

ONG. REC. S. 9999, S10000 (daily ed. Sept. 6, 1996)

(statement of Sen. John Ashcroft) (asserting that homosexuality was a lifestyle choice, and he

was “worried about youngsters in our society” who might choose it rather than “ordinary sexual

orientation”). Some professional counselors and politicians still support “reparative therapy,”

which Forel would have labeled “old fashioned” back in 1906. William J. Bennett, Gay

Marriage: Not a Very Good Idea, W

ASH. POST, May 21, 1996, at A19 (arguing that “[s]ocietal

indifference about heterosexuality and homosexuality would cause a lot of confusion” for

teenagers who think it is “‘cool’ . . . to proclaim they are gay or bisexual”); see Sheryl Gay

Stolberg, Christian Counseling by Hopeful’s Spouse Promotes Questions, N.Y.

TIMES, July 17,

2011, at A14 (describing the “reparative therapy” counseling performed by Michele Bachmann’s

husband and approved by the 50,000 member American Association of Christian Counselors);

142 C

ONG. REC. S. 9999, S10000 (daily ed. Sept. 6, 1996) (statement of Sen. John Ashcroft)

(“[T]hat there are thousands of former homosexuals, individuals who once were engaged in a

homosexual lifestyle, who have changed that lifestyle and have repudiated it and find themselves

to be engaged in heterosexual lifestyles. So it is clear to me that, while there may be a genetic

base for the activity in some respects, it is clear that it is an activity of choice in other respects

and that it is a choice which can be made and unmade.”).

128

The focus on a choice to “commit” homosexual acts was the same justification long used to

justify criminal sodomy laws prior to the Supreme Court decision in Lawrence v. Texas, 539 U.S.

558 (2003). See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986). Some of its adherents would

apparently like to see such criminal prohibitions reinstated. See 142 C

ONG. REC. H7480, H7500

(daily ed. July 12, 1996) (statement of Rep. Henry J. Hyde) (expressing nostalgia to return to the

days when homosexual conduct was a crime in all states).

129

See, e.g., Romer v. Evans, 517 U.S. 620, 636–53 (1996) (Scalia, J., dissenting) (describing

the state majority’s right to demonstrate “their moral disapproval of homosexual conduct” by

prohibiting any local laws protecting lesbians and gay men against discrimination on the basis of

sexual orientation).

130

Jason Horowitz, Michele Bachmann’s Husband Shares Her Strong Conservative Values,

ASH. POST, July 5, 2011, http://www.washingtonpost.com/lifestyle/style/

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232 WEST VIRGINIA LAW REVIEW [Vol. 115

of marriage equality would cause so many bad choices that it would reduce

procreation and the perpetuation of the citizenry.

131

Recognizing that most Americans actually believe lesbians and gay

men exist and should not be “cured,” scholars and public intellectuals opposing

marriage equality tend to avoid this line of argument. They focus instead on

secular public policy goals arguably underlying state recognition of civil

marriage such as the protection of vulnerable women,

132

the domestication of

irresponsible men,

133

raising children well,

134

and private security against

individual economic, psychological and health problems.

135

Some point out

how all of these advantages are accentuated further by the extended network of

kin created through joining two existing family structures.

136

Many conservative writers have concluded that same-sex marriage

serves these purposes as well as different-sex marriage.

137

The early empirical

michele-bachmanns-husband-shares-her-strong-conservative-values/2011/06/21/gIQAyNmvzH

_story.html (describing Rep. Bachman’s argument that public tolerance of homosexuality and

marriage equality would result in children being “lured into trying homosexuality out,” high

divorce rates, and, according to her husband, homosexuality would increase in schools).

131

See Maria L. La Ganga, Lawyers in Prop. 8 Trial Clash at End: Judge Has Pointed

Questions in Closing Arguments over Same-Sex Marriage, L.A.

TIMES, June 17, 2010

(LATExtra) 1, available at 2010 WLNR 12274897 (quoting the assertion during closing

arguments by the Proposition 8 proponents’ attorney that the “marital relationship is fundamental

to the existence and survival of the race” and “[w]ithout the marital relationship, society would

come to an end”); Carolyn Lochhead, Repeal of Marriage Law Debated Defense of Marriage Act

Equated to Racial Segregation, But Supporters Argue Abolishing It Would Damage the

Institution, H

OUS. CHRON., July 21, 2011, at A5, available at 2011 WLNR 14499917 (quoting

Rep. Steve King, a U.S. Congressman from Iowa, who, in turn, cited “a 1947 Supreme Court

case” for the proposition that “[m]arriage and procreation are fundamental to the very existence

and survival of the race”). Arguably, just the opposite is true: “In fact, the society that allows

same-sex marriage is apt to procreate more.” Gary J. Simson, Religion by Any Other Name?

Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause, 23, C

OLUM. J.

GENDER & L. 132, 154 (2012).

132

Bennett, supra note 19, at 2 (“Marriage is about many things, but it primarily ties together

three purposes: protecting women, domesticating men and raising children.”).

133

Id.; Rauch, supra note 7, at 177 (“For taming men, marriage is unmatched.”).

134

Bennett, supra note 19, at 2; Rauch, supra note 7, at 176–77 ( “When men and women get

together, children are a likely outcome; and, as we are learning in ever more unpleasant ways,

when children grow up without two parents, trouble ensues.”).

135

Rauch, supra note 7, at 178 (“If marriage has any meaning at all, it is that, when you

collapse from a stroke, there will be at least one other person whose ‘job’ is to drop everything

and come to your aid; or that when you come home after being fired by the postal service there

will be someone to persuade you not to kill the supervisor.”).

136

Carpenter, supra note 126, at 100; Rauch, supra note 7, at 179 (“Legally speaking,

marriage creates kin. Surely society’s interest in kin-creation is strongest of all for people who

are unlikely to be supported by children in old age and who may well be rejected by their own

parents in youth.”).

137

SULLIVAN, supra note 7, at 182–85; Rauch, supra note 7, at 177–80.

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2012] THE REACTIONARY ROAD TO FREE LOVE 233

evidence supports their view that marriage equality significantly benefits same-

sex couples and their children by providing benefits, a sense of stability and

reliability, increased security regarding familial commitment, and less stress

around legal and social issues.

138

While the power of marriage to coerce monogamy has been viewed

negatively by some on the left,

139

many scholars and other commentators

support same-sex marriage recognition specifically because of this conservative

implication. Thinkers ranging from Yale Law Professor William Eskridge to

conservative columnists like Andrew Sullivan and David Brooks have praised

the ability of marriage to “civilize” or “domesticate” gay men and encourage

monogamy.

140

Even famous anti-gay conservative William Bennett conceded

that marriage might benefit some lesbian and gay families by promoting

monogamy.

141

Conservatives favoring marriage equality focus on same-sex couples

rather than different-sex marriages. They point out that same-sex marriage

cannot directly affect most different-sex marriages because it offers no real

alternative for heterosexual men and women, who would not be tempted to

enter a marriage with someone of the same sex.

142

Additionally, they argue that

138

CHRISTOPHER RAMOS, NAOMI G. GOLDBERG & M. LEE BADGETT, WILLIAMS INST., THE

EFFECTS OF MARRIAGE EQUALITY IN MASSACHUSETTS: A SURVEY OF THE EXPERIENCES AND

IMPACT OF MARRIAGE ON SAME-SEX COUPLES 5–9 (2009), available at

http://williamsinstitute.law.ucla.edu/wp-content/uploads/Ramos-Goldberg-Badgett-MA-Effects-

Marriage-Equality-May-2009.pdf (analyzing and summarizing data from the Massachusetts

Department of Public Health’s Health and Marriage Equality in Massachusetts survey upon the

fifth anniversary of marriage equality in that state). In addition to the benefits enjoyed by

Massachusetts spouses, “[o]f these households, nearly all respondents (93%) agreed or somewhat

agreed that their children are happier and better off as a result of their marriage.” Id. at 8.

139

Saunders, supra note 116, at 12. The author of the 1953 article in One feared that “[e]qual

rights mean equal responsibilities: equal freedoms mean equal limitations,” including “necessary

homosexual monogamy” that would dramatically change the attitudes and behavior of gay

people. Id.

140

WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY

CIVILIZED COMMITMENT (1996); SULLIVAN, supra note 7, at 183; Brooks, supra note 7, at A15

(arguing that the moral commitment of marriage can “domesticate” all people, not just men);

Rauch, supra note 7, at 177–78; see also Carpenter, supra note 126, at 99 (inverting the language

of Martin Luther King, Jr. to celebrate how married same-sex couples will be “bound at last”).

As described below, thinkers on all sides of the marriage debate seem to agree that lesbian

couples tend towards monogamy at at least the same rate as their heterosexual counterparts. See

infra note 152 and accompanying text. Perhaps this is why they are virtually ignored in many of

the arguments on this topic.

141

Bennett, supra note 127, at A19 (conceding this possibility in the process of arguing that

“overall, allowing same-sex marriages would do significant, long-term social damage”).

142

Sullivan, supra note 126, at 22 (“Gay marriage could only delegitimize straight marriage if

it were a real alternative to it, and this is clearly not true. To put it bluntly, there’s precious little

evidence that straights would be persuaded by any law to have sex with—let alone marry—

someone of their own sex.”).

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234 WEST VIRGINIA LAW REVIEW [Vol. 115

same-sex marriage is unlikely to even indirectly alter the institution of marriage

since it involves such a small percentage of the population.

143

Conservatives who oppose marriage equality generally do not deny that

it could help—or a least not harm—same-sex couples and their children.

144

But

this does not appear to concern them. They largely ignore the effect of marriage

equality on same-sex couples, focusing instead on the ways same-sex marriage

recognition might affect different-sex couples and their children.

Anti-gay marriage activists tend to focus on only one purpose for

marriage: producing and raising children.

145

They also tend to define the

benefits of marriage for children very specifically, often limiting them to

children’s relationships with their biological parents.

146

William Bennett and

Maggie Gallagher envision an implicit or express “natural law” that marriage

has already been defined by God or society and the only role the state plays is

to recognize and reinforce this socio-religious fact of life.

147

State recognition

143

See, e.g., Carpenter, supra note 126, at 98–99 (dismissing as overblown the fear that the

marriage of a “tiny minority” of gay people would “infect marriage and somehow change it”);

Rauch, supra note 7, at 172 (“[I]t seems doubtful that extending marriage to, say, another 3 or 5

percent of the population would have anything like the effects that no-fault divorce has had, to

say nothing of contraception.”).

144

Lynn D. Wardle, A Response to the “Conservative Case” for Same-Sex Marriage: Same-

Sex Marriage and “the Tragedy of the Commons,” 22 BYU

J. PUB. L. 441, 453 (2008); Bennett,

supra note 127, at A19 (conceding, despite what he perceived as overwhelmingly negative social

effects, that even same-sex marriage “might benefit some people” by promoting gay monogamy).

145

See infra note 156 and accompanying text. However, some opponents of marriage equality

have looked at other reasons, albeit in a very gendered way. Bennett, supra note 19, at 2

(recognizing arguments of “protecting women, domesticating men and raising children”).

146

Gallagher, for example, argues that biological parental relationships are superior and so

central to the purpose of marriage that it is inadvisable to recognize same-sex marriages. See,

e.g., Maggie Gallagher, The Case for the Future of Marriage, 17 R

EGENT U. L. REV. 185, 188–89

(2004-2005). But she does not spell out other ends of this singular focus. It is interesting to

contemplate the possible consequences of her premise when a married man is not the biological

father of his wife’s child. Should the couple divorce for the good of their child so that the woman

can marry the child’s biological father? What if a woman has children with different fathers? Is

polygamy the answer? What if a couple used a sperm donor to get pregnant because the husband

was sterile? Oddly, Gallagher seems to view assisted reproductive technology (“ART”) primarily

in relation to the lesbians and gay men about whom she claims the marriage debate has “nothing

to do” although ART is most commonly employed by married heterosexuals. Id. at 186 (“I’m a

person who has spent, not the last year or the last five years, but the last fifteen years engaging in

a marriage debate in this country. It had nothing to do with gays and lesbians.”).

147

See Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social

Institution: A Reply to Andrew Koppelman, 2 S

T. THOMAS L. REV. 33, 39–40 (2004) (arguing that

the “bundle of legal incidents” accompanying marriage is merely the state taking “marriage

seriously as a one-flesh union” “and treat[ing] the couple as married, because that is what they

are”); William J. Bennett, What Nature Joins Let No Gays Put Asunder. Marriage is Meant to be

Between One Man and One Woman. Period., L.A.

TIMES (Oct. 17, 2003),

http://articles.latimes.com/2003/oct/17/opinion/oe-bennett17 (opining that the biological sexes

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2012] THE REACTIONARY ROAD TO FREE LOVE 235

and consequences of marriage are useful mainly as rewards or propaganda to

instill heterosexual monogamy as the norm for all children in society so that

those accidentally conceived will be born and raised by their biological

parents.

148

A version of this argument has been accepted by some state high

courts as a valid justification for reserving marriage to different-sex couples

because of their propensity for irresponsible procreation.

149

Some conservatives opposing marriage equality attribute negative

characteristics to gay people or, at least, to their relationships.

150

Those who are

more neutral assert instead that same-sex couples do not fulfill all the purposes

of traditional marriage and, therefore, the couples and the institution are a poor

fit, which will undermine societal understanding of the meaning of marriage.

151

Of course, the latter view supports the establishment of marriage light

alternatives that promise a closer fit for same-sex couples.

152

Because the bad characteristics attributed to gay people and their

relationships often center on promiscuity, anti-gay arguments largely ignore the

existence of lesbians. This is understandable—if misleading—since studies

tend to find lesbian couples are at least as monogamous as different-sex

couples.

153

But it hangs the banner of conservative anti-equality logic atop a

very flimsy pole: gay men—or men in general—are less likely to remain

monogamous and their failed marriages will undermine the meaning of

are “complementary on the basis of nature,” defining “proper sexual behavior” and the

“appropriate relationship for sexual behavior: marriage”).

148

See e.g., Gallagher, supra note 147, at 42 (“The legal incidents of marriage arise from and

exist to serve the ‘sanctification’ narrative embedded in the law.”). The most important legal

purpose of defining marriage is to communicate to the young the essential, broad characteristics

of the normative (or ideal) sexual union.” Id.

149

Morrison v. Sadler, 821 N.E.2d 15, 30 (Ind. Ct. App. 2005) (“[O]pposite-sex marriage is

recognized and supported by law in large part to encourage ‘responsible procreation’ by

opposite-sex couples, who are the only ones who can, in fact, procreate ‘by accident’ . . . .”);

Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (finding it rational to offer incentives for

different-sex marriages because heterosexuals are capable of becoming parents “as a result of

accident or impulse”); Andersen v. King Cnty., 138 P.3d 963, 982 (Wash. 2006) (finding it

rational to legally favor different-sex couples since “no other relationship has the potential to

create, without third party involvement, a child biologically related to both parents”); see infra

note 179; see also Wardle, supra note 144.

150

See infra notes 159, 163–165 and accompanying text.

151

See, e.g., RICHARD A. POSNER, SEX AND REASON 311–14 (1992) (arguing that the incidents

of marriage, designed with heterosexual couples in mind, may not be an exact fit for same-sex

couples).

152

Id. at 313–14 (suggesting a Swedish contractual model as a possible option).

153

See, e.g., Sondra E. Solomon et al., Money, Housework, Sex, and Conflict: Same-Sex

Couples in Civil Unions, Those Not in Civil Unions, and Heterosexual Married Siblings, 52 S

ROLES 561, 566, 569 (2005) (reporting statistics showing that lesbians in Vermont, whether in a

civil union or not, were less likely to have had sex outside of their relationships than married

heterosexual men or women).

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236 WEST VIRGINIA LAW REVIEW [Vol. 115

marriage for everyone else.

154

This argument, in turn, depends on three doubtful

assumptions: (1) marriage will not make same-sex couples substantially more

monogamous; (2) the small number of gay spouses and their children in the

population will have a significant effect on the way different-sex couples view

marriage; and (3) that difference will be greater if gay couples can legally

marry than if they cannot.

155

Some foes of same-sex marriage give the impression that they would

really rather not address this unseemly issue at all. Maggie Gallagher, one of

the most vociferous opponents of marriage equality, has explained that the

same-sex marriage debate really “ha[s] nothing to do with gays and lesbians”; it

is a debate about divorce, unmarried child bearing, and fatherless homes.

156

She

appears to view same-sex marriage as merely a negative factor contributing to

heterosexual irresponsibility. Still, Gallagher focuses a tremendous amount of

energy and passion on her fight against recognizing gay relationships, and she

seems to have cast her lot with populists, who oppose same-sex relationships

without directly addressing any of the problems regarding different-sex couples

and their children.

157

Other anti-gay conservatives focus obsessively on the details of same-

sex sexuality and perceived evil attributes of gay people. In his passionate

arguments against legal recognition of same-sex couples and their children,

Brigham Young Law Professor Lynn Wardle attacks pro-equality conservative

arguments as inaccurate and inconsistent with true conservative principles.

158

A Response to the “Conservative” Case for Same-Sex Marriage, Professor

154

In addition to the critique below, this same argument could justify the superiority of lesbian

marriages over any marriage involving a man. A

NDREW SULLIVAN, VIRTUALLY NORMAL: AN

ARGUMENT ABOUT HOMOSEXUALITY (1995), reprinted in SULLIVAN, supra note 6, at 146, 151–52

(pointing out the “deliciously ironic” conclusion that this conservative anti-gay rationale finds

“its full fruition in a lesbian collective”).

155

See infra notes 160, 166–167 and accompanying text.

156

Gallagher, supra note 146, at 186.

157

E.g., Maggie Gallagher, The GOP Will Pay a Grave Price, NAT’L REV. ONLINE (June 24,

2011 11:49 P.M.), http://www.nationalreview.com/corner/270489/gop-will-pay-grave-price-

maggie-gallagher (threatening New York Republicans with a two-million dollar campaign from

“The National Organization for Marriage” based on their failure to prevent a vote favoring

marriage equality); see supra notes 84–91 and accompanying text (describing the unwillingness

of most opponents of same-sex marriage to support efforts related to divorce, covenant marriage

and other issues directly touching on different-sex couples); infra notes 487–501 and

accompanying text (describing the anti-gay focus of the constitutional amendments drafted and

backed by Ms. Gallagher’s organization). Gallagher and other anti-gay activists still tend to

advocate other requirements of traditional marriage as well, but they have been unsuccessful in

contrast to their anti-gay activities. See Feinberg, supra note 75, at 306–34.

158

Wardle, supra note 144, at 448–50. Wardle describes true conservative concepts as the

preservation of valuable institutions, cautious and very slow progress, tradition-based experience,

distrust of state power, “responsible” individual liberty, and non-material morality, which seems

to veer into territory traditionally labeled natural law.

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Wardle describes a “gay lifestyle” that results in relationships innately “less

responsible, less stable, less monogamous, less faithful and less committed to

responsible child-rearing” as well as a related propensity to contract venereal

disease and die early.

159

Of course, this argument is a non-starter for anyone

who does not begin with Professor Wardle’s assumptions about the disloyal,

promiscuous, diseased nature of lesbian and gay male couples. Even if one

accepts Wardle’s assumptions about gay men in general and his willingness to

ignore lesbians (or to shoehorn them into ill-fitting stereotypes of gay men), his

factual assertion that “marital or marriage-like status” has “virtually no impact

on the high infidelity rates of gay men” is not supported by his own source, a

study comparing same-sex couples in Vermont civil unions with other same-

sex couples.

160

In fact, that study was based on information compiled within the

first year after civil unions became legal, and its authors expressly warned that

the early data was “about who chooses to have a civil union and who does not.

It is not about how being in a civil union [let alone a marriage] changes a

relationship.”

161

Relevant studies actually point in the opposite direction.

162

159

Id. at 460 (Wardle treats the characteristics of this “gay lifestyle” as largely inalterable,

although he seems to believe that sexuality itself is chosen); see also Lynn D. Wardle, The

Biological Causes and Consequences of Homosexual Behavior and their Relevance for Family

Law Policies, 56 D

EPAUL L. REV. 997, 998–1014 (2007).

160

Wardle, supra note 144, at 456.

161

Solomon et al., supra note 153, at 574. In addition to ignoring the obvious social

distinction between marriage and civil union, Wardle expected dramatic and documented

immediate changes in these civil-unionized male couples within one year while asserting that it

would take “a full generation” to discern and clearly document the degeneration of different-sex

couples wrought by the “serious risk of lowering the[ir] standards” caused by extending marriage

to lesbians and gay men. Wardle, supra note 144, at 460–68. An even larger problem with his

cherry-picked conclusions from the first year civil union study was his misleading use of the data

reported. It is true that the study found that a much larger number of gay men than married

heterosexual men questioned had had sex outside of their relationships and that those gay men

were only 2.8% less likely to have had sex outside of their present relationship than the other gay

couples. Id. at 569. However, the introduction to the report of the study explains that it looked at

couples in and out of civil unions that were “similar on such factors as age and length of

relationship.” Solomon, supra note 153, at 562. Therefore, the couples would have all been in the

same group of unrecognized relationships prior to the recent date of the civil unions. Since the

researchers were interested in who enters a civil union, not what happens afterwards, they asked

their subjects “if they had ever had sex with anyone other than their current partner since they

and their partner became a couple.” Id. at 564 (emphasis added). Of course, the answer to that

question proves nothing about the couples’ sexual behavior after they entered civil unions. In

addition to this misuse of data, Wardle failed to point out the differences that the study did

conclude with regard to the gay male couples who entered civil unions. They “had more mutual

friends as a couple, were less likely to have seriously considered ending their relationship, and

were less likely to have seriously discussed ending their relationship, than were gay men not in

civil unions.” Id. at 562. He also omitted any mention of the much larger number of lesbian

couples studied, who were somewhat less likely to have had sex outside their relationship than

were heterosexual married women. See id. at 566.

162

See, e.g., RAMOS, GOLDBERG & BADGETT, supra note 138, at 1, 5–6.

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238 WEST VIRGINIA LAW REVIEW [Vol. 115

In his Response, Professor Wardle leaps from his belief that

“promiscuity and polyamory are the standard in gay and lesbian

relationships”

163

to the conclusion that inferior gay standards of loyalty and

infidelity pose a “serious risk of lowering the standards” of others and leading

to the disintegration of marriage as we know it.

164

This leads him down the

outrageous path of equating recognition of same-sex marriage with slavery and

“sexual apartheid,” then arguing that marriage equality will result in “sexual

chaos,” setting the stage for an authoritarian state similar to Napoleon’s France

or Hitler’s Germany.

165

163

Wardle, supra note 144, at 467 (citing a 1978 study of gay men and a 1997 study of still

sexually-active gay men of the same generation (i.e., 50 and older in 1997) recruited through sex

shops, saunas, health centers, pornography outlets and other gay businesses—for this

generalization about gay and lesbian relationships). As the authors of the 1997 study pointed out,

that “generation of older homosexually active men ha[d] lived through remarkable changes in

perceptions and attitudes toward homosexuality,” including the advent of public openness,

activism, AIDS and the development of gay community. Paul Van de Ven, et al., A Comparative

Demographic and Sexual Profile of Older Homosexually Active Men, 34 J.

SEX RES. 349, 350

(1997).

164

Solomon, et al., supra note 153, at 569; Wardle, supra note 144, at 467. Wardle did not

mention the standard of honesty within a relationship, perhaps because one of the studies he

relied on showed that heterosexual married men were eight times more likely than men in civil

unions to feel it is okay for them to have sex outside their relationship without discussing it with

their partners.

165

Wardle, supra note 144, at 463–64 (comparing the basic moral value that made it

impossible for Lincoln to accept popular tolerance for slavery with the imperative to reject any

popular tolerance for same-sex marriage or civil unions today; of course, this argument for civil

war was odd in light of Wardle’s characterization of his argument as Burkean conservative in

inspiration); see also id. at 473–74 (“Sexual segregation will increase and the historically gender-

integrated public institution of marriage will be redefined to include sexual apartheid couples”);

id. at 467–69 (predicting that “[t]he abandonment of social responsibility and the pursuit of

private self-interest” exemplified by marriage equality will lead to “sexual chaos and family

disintegration,” although “it will probably take a generation or two to fully unfold”). The fact that

Wardle supposes the downward spiral “probably will be more gradual than the eighteenth-

century French (or twentieth-century German) Revolution” hardly ameliorates his comparison of

same-sex marriage to the origins of Hitler and the Nazi party “in the gay bars of Munich.” Id. at

469. This flip remark is as misleading as it is offensive since the Nazis eventually incarcerated

and killed thousands of gay men, including Ernst Roehm and the handful of other allegedly gay

leaders of the early Strum Abteilung (“SA”). See R

ICHARD PLANT, THE PINK TRIANGLE: THE NAZI

WAR AGAINST HOMOSEXUALS 54–69 (1986) (describing the importance of Roehm and a few

other gay men to the foundation of the SA and “the night of the long knives” in 1934 when

Himmler’s Schutzstaffel, Heydrich, and Göring finally won their internecine battle against the

SA brown shirts, leading to the murder of those Hitler and Göring labeled “homosexual pigs”);

id. at 149 (estimating the number of men convicted of homosexuality in Germany between 1933

and 1944 at 50,000 to 63,000); id. at 154 (estimating that “somewhere between 5000 and 15,000

homosexuals perished behind barbed-wire fences” under the Nazi regime); see generally H

EINZ

HEGER, THE MEN WITH THE PINK TRIANGLE: THE TRUE, LIFE-AND-DEATH STORY OF

HOMOSEXUALS IN THE NAZI DEATH CAMPS (David Fernbach trans., 2nd ed. 1994) (the compelling

biographical account of one gay concentration camp survivor). Perhaps, Wardle should have paid

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2012] THE REACTIONARY ROAD TO FREE LOVE 239

It might be wrong to dismiss Professor Wardle’s argument entirely

because of his inability to resist the urge to delve into bizarre analogy and

fanciful flights of prognostication. But his underlying leaps of logic also

exemplify problems typical of less hysterical arguments against marriage

equality. For example, he foresees few gay couples actually marrying, but then

finds it likely that this small number of same-sex couples would change the

institution of marriage profoundly, rather than be changed by it.

166

Because

same-sex couples comprise under two percent of all cohabiting U.S. couples

(and gay male couples are an even smaller percentage), it is difficult to see how

this small group would change marriage substantially, rather than the other way

around.

167

The more likely assumption is that marriage will discipline and

regulate same-sex couples and their families as it has biracial couples and

women who can now own property and occasionally refuse sex to their

husbands.

168

After all, conservatives like Professor Wardle apparently feel so

strongly regarding marriage precisely because of their assumptions about its

transformative power on married couples.

3. Same-Sex Marriage Recognition Is a Conservative Move

Proponents of same-sex marriage can point to empirical evidence

supporting their arguments that marriage equality is a conservative move,

attention when Gallagher warned Andrew Koppelman that “[p]redicting the future is an

inherently chancy, and perhaps even an essentially unscholarly enterprise.” Gallagher, supra note

147, at 34, 69–70 (Gallagher predicting the future of sentiment in favor of marriage equality

descending after it “peaked in 2003” while also predicting that—if recognized—marriage

equality would undermine the institution of marriage).

166

Wardle, supra note 144, at 467. Wardle similarly attributes all things bad to gay people

when he blames them for the decadence that caused the decline and fall of the Weimar Republic,

while asserting that the reactionary Nazi force responding to this decadence also originated

among gay men in bars. Id. at 469.

167

According to the 2008 Current Population Survey of the U.S. Census Bureau, there were

66.9 million different-sex couples cohabiting in the U.S. in 2008 (60.1 million married couples

and 6.8 unmarried couples). Press Release, U.S. Census Bureau, As Baby Boomers Age, Fewer

Families Have Children Under 18 at Home (Feb. 25, 2009), available at

http://www.census.gov/newsroom/releases/archives/families_households/cb09-29.html. The

same survey estimated the number of same-sex cohabiting couples at 565,000 in 2008. See G

ARY

J. GATES, WILLIAMS INST., SAME-SEX SPOUSES AND UNMARRIED PARTNERS IN THE AMERICAN

COMMUNITY SURVEY, 2008, at 3 (2009), available at http://williamsinstitute.law.ucla.edu/wp-

content/uploads/Gates-ACS2008FullReport-Sept-2009.pdf. The estimated number of same-sex

couples increased to 646,464 in 2010, of which fifty-one percent were female couples. G

ARY J.

GATES & ABIGAIL M. COOKE, UNITED STATES CENSUS SNAPSHOT: 2010, at 1 (2011), available at

http://williamsinstitute.law.ucla.edu/wp-content/uploads/Census2010Snapshot-US-v2.pdf.

168

As described above, this unexceptional assumption has been accepted by conservative

marriage proponents as well as inspiring a sixty year debate on the left. See supra notes 118–122

and accompanying text; infra notes 137–141 and accompanying text.

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240 WEST VIRGINIA LAW REVIEW [Vol. 115

which is—at worst—unlikely to harm different-sex marriage.

169

There is no

significant evidence that marriage equality is damaging traditional marriage in

the United States.

170

States that recognize same-sex marriage actually have

some of the lowest average divorce rates.

171

In fact, the national trend toward

lower divorce rates “has been largely confined to states which have not passed

a state constitutional ban on gay marriage.”

172

States that have enacted

constitutional amendments saw their divorce rates increase slightly.

173

These

statistical distinctions were likely caused by factors such as education, wealth,

and age at wedlock, rather than state recognition of same-sex marriage.

174

Yet

they do seriously undermine the unsupported, but popular, conservative

assertion that marriage equality somehow hurts different-sex marriages.

Conservative arguments against marriage equality invoke tradition,

slippery slopes, and the goals of normalizing heterosexuality, heterosexual

169

Of course, other advocates of marriage equality have argued that same-sex marriage

recognition will have progressive effects on marriage, liberalizing its meaning and related gender

roles for all spouses. See Graff, supra note 115, at 135–37 (arguing that “[s]ame-sex marriage is

a breathtakingly subversive idea,” resulting in “gender-blind” marriage law and the negation of

the idea that marriage is justified mainly by procreation); see also Barbara J. Cox, The Lesbian

Wife: Same-Sex Marriage as an Expression of Radical and Plural Democracy, 33

CAL. W. L.

REV. 155, 163–66 (1997). However, they do not argue that it will undermine different-sex

marriage, just the sexism and “compulsory heterosexuality” traditionally associated with it. See

Graff, supra note 115; Cox, supra.

170

See supra notes 160–161 and accompanying text (debunking some of the statistics that

have been misused for that purpose). While Scandinavian statistics have been wielded to argue

that the legal recognition of same-sex relationships destroys traditional marriage and its link to

birth and childrearing, see Stanley Kurtz, Scandinavian Shadow, N

EWSDAY (Apr. 15, 2004, 8:00

PM), www.newsday.com/opinion/scandinavian-shadow-1.620766, those arguments have been

comprehensively refuted. See also E

SKRIDGE & SPEDALE, supra note 101, at 173–97.

171

Danielle Kurtzleben, Divorce Rates Lower in States with Same-Sex Marriage: Why do

Divorce Rates and Gay Marriage Laws Seem to be Correlated?, Education and Marriage Age

May Play a Part, U.S. N

EWS & WORLD REPORT, July 6, 2011, available at 2011 WLNR

13450101 (“[Five] of [ten] states, plus the District of Columbia, with the lowest divorce rates per

thousand people (of the [forty-four] states, plus D.C., that had available data) are also among the

nine jurisdictions (a group that includes eight states and the District of Columbia) that currently

perform or recognize gay marriages.”). “In states that recognize or perform gay marriages, the

number of divorces in 2009 was 41.2 percent of the number of marriages. In the [thirty-six] other

states for which 2009 data are available, it was 50.3 percent. Remove the outlier Nevada . . . and

the figure jumps to 53.2 percent.” Id.

172

Nate Silver, Divorce Rates Higher in States with Gay Marriage Bans, FIVETHIRTYEIGHT:

OLITICS DONE RIGHT (Jan. 12, 2010, 4:12 AM),

http://www.fivethirtyeight.com/2010/01/divorce-rates-appear-higher-in-states.html?utm_source=

twitterfeed&utm_medium=twitter (finding that the divorce rates in states without anti-gay

constitutional amendments decreased by eight percent between 2003 and 2008).

173

Id. (citing a one percent rise in divorce rates over the period from 2003 to 2008 for states

that enacted anti-gay amendments by January 1, 2008).

174

Id.; Kurtzleben, supra note 171.

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2012] THE REACTIONARY ROAD TO FREE LOVE 241

monogamy, and a link between procreation, childrearing, and marriage.

175

However, none of the arguments hold up well in themselves, and they all break

down when examined in context.

The tradition-based rationale for current discrimination against same-

sex couples is difficult to take seriously in light of the dramatic changes in

marriage over time.

176

Abolishing coverture, punishing marital rape,

recognizing biracial marriage, and allowing divorce—eventually including

unilateral no fault divorce—all represent major breaks with prior tradition. In

fact, as described above, one of the most constant aspects of marriage has been

its flexibility to evolve over time.

177

Conservatives also argue against marriage equality by insisting that it is

a matter of shoring up the terrace on a slippery slope. The evolution of

marriage must stop somewhere or it will cease to have meaning, and marriage

defenders draw a line at same-sex couples in order to prevent marriage from

becoming meaningless and leading toward “sexual chaos” or “man-on-dog

marriage.”

178

Slippery slope arguments often arise to draw lines just when and where

the drawers wish. The claim of protecting marriage by preventing its

availability to same-sex couples appears disingenuous in light of the general

failure of marriage traditionalists to significantly change any marriage or

divorce rules for different-sex couples. Arguably, the whole “defense of

marriage” argument against same-sex couples is merely a less hateful sounding

rationalization for punishing lesbians and gay men and their families. As

Justice Scalia observed in his Lawrence v. Texas dissent, “‘preserving the

traditional institution of marriage’ is just a kinder way of describing the State’s

moral disapproval of same-sex couples.”

179

175

See, e.g., Gallagher, supra note 147, at 36–52 (raising normative and slippery slope issues);

Lynn Wardle, Multiply and Replenish: Considering Same-Sex Marriage in Light of State

Interests in Marital Procreation, 24 H

ARV. J.L. & PUB. POL’Y 771, 778–79 (arguing that legal

recognition of same-sex marriage will undermine the time-honored societal purpose of

heterosexual marriage).

176

See supra Part II.A.

177

See supra text accompanying note 81.

178

Wardle, supra note 144, at 469 (imagining that sexual chaos and family disintegration will

result from the recognition of same-sex marriage, leading to the “disintegration of basic social

institutions” and eventually to Nazis); Excerpts from Santorum’s Remarks on Gays, B

ALT. SUN,

Apr. 23, 2003, at 10A, available at 2003 WLNR 2006187 (quoting then-Senator Rick

Santorum’s argument that “the definition of marriage has not ever, to my knowledge, included

homosexuality. That’s not to pick on homosexuality. It’s not, you know, man on child, man on

dog or whatever the case may be. It is one thing.”).

179

Lawrence v. Texas, 539 U.S. 558, 601 (2003) (Scalia, J., dissenting) (emphasis in original).

Efforts to scrub the taint of disdain from the “defense” of traditional marriage have led some

courts to diminish the central purpose of marriage to a pitiful “reckless procreation” rationale:

Straight couples may be less responsible than their gay counterparts, so that they require the

benefits of marriage to assist them when they accidentally conceive children. See Barbara J. Cox,

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242 WEST VIRGINIA LAW REVIEW [Vol. 115

For those who look beyond the conception and rearing of children by

their two biological parents (the sole aspect of marriage where same-sex

couples are categorically different), it is clear that same-sex couples fit all of

the other non-sexist state interests served by civil marriage.

180

Those interests

are sufficient to justify same-sex marriage for many people. Even those who

are not convinced that marriage is the right fit for same-sex couples must

recognize that states should legally recognize lesbian and gay relationships in

some way. There’s the rub. The logical solution for anyone who opposes

marriage equality but actually cares about the welfare of same-sex couples and

their children is the creation of some alternative form of recognition.

181

And the

alternatives will be better for some different-sex couples too. After all, lesbians

and gay men do not comprise the majority of couples who fail to have

procreative sex. Couples who are elderly, sterile, or effective users of birth

control, are similarly situated to same-sex couples in this regard.

182

Many of those who focus solely on marital, biological procreation as

the essential element of marriage would refuse to recognize same-sex

relationships altogether. However, that too would lead to results anathema to a

true defense of traditional marriage.

Even if same-sex marriage, in isolation, were not a conservative move,

it is clearly conservative in context. To rationally understand whether a policy

position will realistically lead to desirable results, one must compare the likely

outcome of its success or failure. The opponents of same-sex marriage have

dwelt in great detail on their fears of what might happen if they fail and

lesbians and gay men can marry. However, they do not appear to have critically

considered the likely results if they succeed.

“A Painful Process of Waiting”: The New York, Washington, New Jersey, and Maryland

Dissenting Justices Understand that “Same-Sex Marriage” is Not What Same-Sex Couples are

Seeking, 45 C

AL. W. L. REV. 139, 143 (2008) (explaining that “one almost feels sorrow about the

circumscribed purpose left for marriage after these courts and state governments do their best to

retain it as an exclusively heterosexual institution”); Kenji Yoshino, Too Good for Marriage,

N.Y.

TIMES, July 14, 2006, at A19. A Northern European style paternity registration system

would be a more effective way of achieving this goal, while avoiding discrimination.

180

See supra notes 132–138, 140–141 and accompanying text.

181

See, e.g., RICHARD A. POSNER, SEX AND REASON 312–14 (1992) (suggesting an

“intermediate solution” of registered partnership or some other “simulacrum of marriage” for

same-sex couples after expressing ambivalence towards the recognition of full marriage equality

due to its “information cost” and because same-sex marriage is “unlikely to fit” perfectly with the

incidents of different-sex marriage); Gallagher, supra note 147, at 58 (arguing in 2004 that any

discussion of marriage equality for the very small group of lesbians and gay men would be

premature because “alternative mechanisms for meeting the social needs (ones perhaps even

better designed for them than marriage) have hardly been seriously tried, much less exhausted”).

182

Of course, there are also symbolic and communicative ramifications of marriage

recognition. But conservative concerns on those issues, too, are best served by recognition of

marriage equality. See infra notes 186–187 and accompanying text.

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2012] THE REACTIONARY ROAD TO FREE LOVE 243

Even accepting the doubtful assumption that same-sex marriage would

harm the institution of marriage,

183

the anti-equality argument would only make

sense if the growing number of “out” same-sex couples is more harmful when

they can legally marry than when they cannot. As this paper demonstrates, an

additional question is whether society and marriage would be better off if the

strategies for maintaining gay-free marriage lead to a cafeteria of legal

relationship options for both same and different-sex couples. While liberals

may disagree, the conservative answer to these questions is clear.

Rather than examine these alternative paths, Wardle, Gallagher and

other opponents of marriage equality seem to assume that their victory would

make lesbians, gay men and their families disappear—or at least stop affecting

societal views of family. But, there are now millions of out lesbians, gay men,

and bisexuals, including over 110,000 same-sex couples raising children

throughout the United States.

184

These couples are unlikely to retreat

voluntarily into the closet. It is also currently difficult to imagine the American

public supporting a return to the days when lesbians and gay men were

persecuted, prosecuted, and shamed into invisibility even if hetero-supremacists

had the will, and the stomach, to renew the persecution of homosexuality

common in Christendom from the time of Augustine to the era of Bowers v.

Hardwick.

185

Conservatives lament the negative effect of unmarried couples

cohabiting and even raising children without marriage. After all, these counter-

183

See ESKRIDGE & SPEDALE, supra note 101, at 173–97; see also Silver, supra note 172

(citing a one percent rise in divorce rates over the period from 2003 and 2008 for states that

enacted anti-gay amendments by January 1, 2008).

184

GARY J. GATES, WILLIAMS INST., FAMILY FORMATION AND RAISING CHILDREN AMONG

SAME-SEX COUPLES 1 (Jan. 2012), available at http://williamsinstitute.law.ucla.edu/wp-

content/uploads/Gates-Badgett-NCFR-LGBT-Families-December-2011.pdf (estimating that over

110,000 same-sex couples are raising children in the United States); G

ARY J. GATES, WILLIAMS

INST., HOW MANY PEOPLE ARE LESBIAN, GAY, BISEXUAL, AND TRANSGENDER? 1, 6–7 (Apr.

2011), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-How-Many-

People-LGBT-Apr-2011.pdf [hereinafter G

ATES, LGBT] (estimating that nine million Americans

identify as LGBT and that more than twice that number have engaged in same-sex sexual

behavior);

GARY J. GATES, WILLIAMS INST., SEXUAL MINORITIES IN THE 2008 GENERAL SOCIAL

SURVEY: COMING OUT AND DEMOGRAPHIC CHARACTERISTICS, 4 (Oct. 2010), available at

http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-Sexual-Minorities-2008-GSS-

Oct-2010.pdf (“[o]nly [four percent] of gay men and lesbians have never told [come out to]

anyone compared to more than [twenty-five percent] of bisexuals”).

185

See generally Bowers v. Hardwick, 487 U.S. 186, 196 (Burger concurring) (describing

long history of persecution of homosexuality). Of course, some American hetero-supremacists

have been actively promoting a persecution agenda abroad. See Jeffrey Gettleman, Americans’

Role Seen in Uganda Anti-Gay Push, N.Y.

TIMES, Jan. 3, 2010,

www.nytimes.com/2010/01/04/world/africa/04uganda.html?partner=rss&emc=rss (tracing an

uproar leading to legislation that would impose the death penalty for homosexual behavior in

Uganda to anti-gay American religious visitors).

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244 WEST VIRGINIA LAW REVIEW [Vol. 115

examples to marriage become normative as they become more frequent.

186

Certainly, adding a group of families to this list does not help. And, in the

special case of same-sex couples, the effect could be magnified. Society, the

media and politicians have focused intently on these families. What if the final

result of that debate is a message that marriage is unsuited to same-sex couples

and their children? If these families do well—if they are active in the PTA,

playgroups and their local communities, and eventually taking out loans to send

their teenagers to college—that could truly undermine the norm of marriage. If

these innately unmarriageable couples can do as well at raising their children as

other families, then why should others feel compelled to legally marry?

187

As University of Chicago Professor Mary Anne Case has pointed out,

modern civil marriage is legally a “thinly” defined institution with very few

fixed requirements.

188

Couples can choose to “have an open marriage, to live in

different cities or in different apartments in the same city, to structure their

finances as they please,” and remain just as married as their more traditional

counterparts.

189

Since “marriage” means a lot of different things to different

people, the categorical distinction on the basis of sex has ceased to make sense.

Why should lesbians and gay men be categorically banned from a civil

institution, which otherwise allows all sorts of behavior unrelated to

responsible biological procreation? No one is suggesting that we can change

the social meaning of marriage to the uniform, patriarchal institution that it was

a century ago. Therefore, the only answer might be uncoupling social and

religious marriage from the legal institution of civil marriage. This answer has

186

Richard Posner, The End of Marriage?, THE BECKNER-POSNER BLOG (Apr. 4, 2010, 5:31

PM), http://www.becker-posner-blog.com/2010/04/the-end-of-marriage-posner.html (arguing

that “widespread practices tend to become normative,” so that “[t]he more unmarried people

there are, the more the unmarried state seems normal”).

187

See Carpenter, supra note 126, at 100 (arguing that the traditionalist notion of marriage as

the normative status for couples willing to show social responsibility including childrearing

would be reinforced by marriage equality and undermined by responsible non-marital lesbian and

gay family relationships). Of course, many of these couples are married as far as they, their

families, their friends and even their churches are concerned. That may maintain the religious or

societal norms of marriage, while merely undermining the importance of civil marriage as a legal

institution. This may please some, but—because it would also undermine the special legal status

of civil marriage—it would tend to reduce the material advantages of marriage with substantial

consequences.

188

Mary Anne Case, What Feminists Have to Lose in Same-Sex Marriage Litigation, 57

UCLA

L. REV. 1199, 1203–06 (describing a “thin view” of civil marriage as “a legal shell that

couples can fill with their own normative meaning and internal structure”).

189

See id. at 1203 (quoting Mary Anne Case, Couples and Coupling in the Public Sphere: A

Comment on the Legal History of Litigation for Lesbian and Gay Rights, 79 Va. L. Rev. 1643,

1665–66 (1993)); see also, Case, supra note 50, at 1773. But see Murray, supra note 60, at 29–40

(describing the disciplining effect of marriage); Titshaw, supra note 74, at 580–82 (describing an

exception, the federal government’s examination of the internal bona fides of otherwise legal

different-sex marriages for purposes of immigration recognition).

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2012] THE REACTIONARY ROAD TO FREE LOVE 245

actually been suggested by many intellectuals on the left and the right.

190

But it

seems to have little resonance with the public, and it is probably the most

radical solution of all. On the other hand, there has been a great deal of

movement over the last twenty years toward normalizing and legally

recognizing same-sex relationships.

D. The Movement for Same-Sex Marriage in the United States

A reader of the August 1953 One magazine essay on marriage

commented that discussing same-sex marriage was like “supposing that

tomorrow, all humans will suddenly become giants” and debating whether to

“tear down all our houses and build new ones,” or “simply raise the roof[s].”

191

This skepticism echoed true for forty years.

192

But that has now changed.

Hawaii’s Supreme Court first took the issue of marriage equality seriously in

the 1990s, leading other courts and legislatures to do the same. Now, the

original essay in One predicting same-sex marriage by 2053 appears very

conservative.

Nearly half of U.S. states and the District of Columbia have begun to

legally recognize same-sex unions over the last fifteen years.

193

Eight

jurisdictions have recognized full same-sex marriages: Massachusetts,

Connecticut, Iowa, Vermont, New Hampshire, the District of Columbia, New

York, and California.

194

Three more have marriage laws awaiting popular

190

See generally Fineman, supra note 123 (urging abolition of marriage as a legal category in

favor of new forms of relationship recognition); Kmiec & Saxer, supra note 123 (calling for the

abolition of civil marriage, solely the religious institution of marriage).

191

Karcher, supra note 118, at 13–14.

192

See, e.g., Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) (upholding the

constitutionality of Minnesota’s state provision limiting marriage to male-female couples);

Singer v. Hara, 522 P.2d 1187, 1197 (Wash. 1974) (upholding the constitutionality of

Washington’s exclusion of same-sex couples from its definition of marriage); see also, e.g.,

Adams v. Howerton, 486 F. Supp. 1119, 1121–25 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th

Cir. 1982) (affirming an I.N.S. decision denying an immigrant visa petition filed on behalf of his

Australian husband because the petitioner “failed to establish that a bona fide marital relationship

can exist between two faggots”).

193

See infra notes 194–199 and accompanying text.

194

See Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 481–82 (Conn. 2008), Varnum v.

Brien, 763 N.W.2d 862, 905–07 (Iowa 2009); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d

941, 967–70 (Mass. 2003); Michael Barbaro, With Wait Over, Gay Couples Wed Across New

York, N.Y.

TIMES, July 25, 2011, at A1; Mike DeBonis & Tim Craig, High Court Declines to

Hear Challenge to D.C.’s Gay Marriage Law, W

ASH. POST, Jan. 19, 2011, at B04; Abby

Goodnough, New Hampshire Approves Same-Sex Marriage, N.Y.

TIMES, June 4, 2009 at A19;

Abby Goodnough, Rejecting Veto, Vermont Backs Gay Marriage, N.Y.

TIMES, Apr. 8, 2009, at

A1 (Vermont’s legislature overrode Governor Jim Douglas’s veto of that state’s same-sex

marriage bill). Since the passage of a statewide referendum rejecting same-sex marriage in

November 2008, new licenses are no longer issued in California; however, that state does still

TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM

246 WEST VIRGINIA LAW REVIEW [Vol. 115

referenda in November.

195

Maryland, New Mexico, and Rhode Island do not

license same-sex marriages yet, but they recognize same-sex marriages

celebrated in other states, at least for some purposes.

196

Nine states and the

District of Columbia have reached a political compromise electing to establish

quasi-marriage civil unions or domestic partnerships featuring all of the state

benefits and responsibilities of marriage without the label,

197

and eleven states

have adopted more limited semi-marriage domestic partnerships, reciprocal

beneficiaries, or other arrangements.

198

If you do the math, this adds up to

thirty-two different possibilities for same-sex relationship recognition. But it

does not involve thirty-two different states. Rather, there are at least thirty-two

different parallel and overlapping marriage and marriage light regimes in

twenty-three jurisdictions. That is, some states offer more than one.

199

recognize the marriages of the around 18,000 couples who were married during the seven months

when marriage licenses were issued. Maura Dolan, Battles Brew as Gay Marriage Ban is

Upheld, The 6-1 Ruling Concerns Some Who Fear Erosion of Rights in the Future. But Wedded

Couples Retain Their Status,

L.A. TIMES, May 27, 2009, at 1, available at 2009 WLNR

10005913. This may change again soon in California if the U.S. Supreme Court denies cert. and

allows the Ninth Circuit decision in Perry v. Brown to stand. At least, two American Indian tribes

also recognize marriage equality. Tribe Adopts Gay Marriage Law, L.A.

TIMES, Aug. 4, 2011, at

10, available at 2011 WLNR 15392249; Where Gay Marriage is Welcome, S

EATTLE TIMES, Aug.

5, 2011, at B1, available at 2011 WLNR 15714199.

195

See L.D. 1860, 125th Leg., 2d Reg. Sess. (Me. 2012), available at http://www.

mainelegislature.org/legis/bills/getPDF.asp?paper=IB0003&item=1&snum=125 (indefinitely

postponing consideration of citizens same-sex marriage initiative, thereby sending it directly to

Maine voters); H.B. 438, 2012 Reg. Sess. (Md. 2012), available at

http://mlis.state.md.us/2012rs/bills/hb/hb0438t.pdf (enacting marriage equality after a delay to

allow for a referendum); H.B. 2516, 62d Leg., 2012 Reg. Sess. (Wash. 2012), available at

http://apps.leg.wa.gov/documents/billdocs/2011-12/Pdf/Bills/House%20Bills/2516.pdf (enacting

marriage equality, which is on hold pending a November 2012 referendum).

196

See Status of Same-Sex Relationships Nationwide, LAMBDA LEGAL,

http://www.lambdalegal.org/publications/nationwide-status-same-sex-relationships (last visited

Sept. 9, 2012); see also, e.g., Marriage—Whether Out-of-State Same-Sex Marriage that is Valid

in the State of Celebration May be Recognized in Maryland, 95 O

P. ATT’Y GEN. 3, 5–6 (2010),

available at http://www.oag.state.md.us/Opinions/2010/95oag3.pdf (opining that out-of-state

same-sex marriages are recognizable under Maryland law). California, where Proposition 8

barred recognition of same-sex marriage, also recognizes out of state marriages entered into

before November 5, 2008. C

AL. FAM. CODE § 308(b) (West 2008).

197

California, Delaware, the District of Columbia, Hawaii, Illinois, Nevada, New Jersey,

Oregon, Rhode Island, and Washington note that there is some overlap of states recognizing

marriage light and those recognizing marriage. See M.V.

LEE BADGETT & JODY L. HERMAN,

WILLIAMS INST., PATTERNS OF RELATIONSHIP RECOGNITION BY SAME-SEX COUPLES IN THE UNITED

STATES 8 (Nov. 2011), available at http://williamsinstitute.law.ucla.edu/wp-

content/uploads/Marriage-Dissolution-FINAL.pdf.

198

Arizona, Colorado, Hawaii, Maine, Maryland, Montana, New Jersey, New Mexico, New

York, Vermont, and Wisconsin. See generally infra note 342 and accompanying text.

199

See, e.g., New Jersey (offering different-sex marriage, same-sex civil unions, and gender

neutral but age-restricted domestic partnerships), Vermont (offering both marriage and reciprocal

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2012] THE REACTIONARY ROAD TO FREE LOVE 247

As the first state to take the question of marriage equality seriously,

Hawaii’s marriage debate is an example worth recounting. Some aspects of the

Hawaiian marriage story were unique. Many more were typical.

The public marriage discussion in Hawaii began with a constitutional

challenge filed in state courts.

200

A handful of plaintiffs had already

unsuccessfully challenged marriage discrimination in other states, but the

Hawaiian case was different. When the Hawaii Supreme Court held that

marriage discrimination constitutes sex discrimination, triggering heightened

scrutiny under the state’s Equal Rights Amendment, Hawaii appeared to be on

the verge of marriage equality.

201

This set off a national uproar as other states

and the federal government leapt to enact so-called Defense of Marriage Acts,

clarifying that they would not recognize any Hawaiian same-sex marriage.

202

In the end, negative popular reaction in Hawaii lead to a constitutional

amendment before Hawaii could celebrate its first legal same-sex marriage.

203

This popular move to circumvent “judicial activism” through a state

constitutional amendment would be repeated in other states.

204

However, the

form of the Hawaiian amendment was uniquely modest, merely taking the

question out of the hands of judges and authorizing the state’s legislature to

define marriage as it and as its constituents see fit.

205

beneficiaries after phasing out the third institution of same-sex civil unions). See infra notes 480–

483 and accompanying text.

200

See Baehr v. Lewin, 852 P.2d 44, 48–50 (Haw. 1993) (describing the history of that

lawsuit, where plaintiff couple sued DOH for denying them a marriage license because they were

of the same-sex, claiming this violated Hawaii’s Constitution).

201

Id. at 68–74 (concluding that Hawaii’s refusal to license same-sex marriage could only be

upheld as constitutional if the state overcame the burden of “strict scrutiny” by demonstrating

that its discriminatory law “furthers compelling state interests and is narrowly drawn to avoid

unnecessary abridgements of constitutional rights”).

202

Titshaw, supra note 53, at 468.

203

Elaine Herscher, Same-Sex Marriage Suffers Setback Alaska, Hawaii Voters Say “No,”

S.F.

CHRON., Nov. 5, 1998, at A2, available at 1998 WLNR 3984799.

204

In 1998, the same year that South Carolina finally repealed its constitutional prohibition of

interracial marriage, Alaska became the first state to enact a constitutional amendment

prohibiting same-sex marriages. See id.; Cheryl Wetzstein, Gays Can’t ‘Marry,’ 2 States Say,

ASH. TIMES, Nov. 5, 1998, at A16, available at 1998 WLNR 361336. Between 2000 and 2008,

twenty-nine additional states amended their constitutions to ban same-sex marriage. Robert

Barnes, Calif. Ban on Gay Marriage Reversed, W

ASH. POST, Feb. 8. 2012, at A1, available at

2012 WLNR 2704104; State by State: The Legal Battle Over Gay Marriage, NPR.

ORG (last

visited Sept. 24, 2012), http://www.npr.org/2009/12/15/112448663/state-by-state-the-legal-

battle-over-gay-marriage [hereinafter State by State]. In 2012, North Carolina followed suit.

Campbell Robertson, Ban on Gay Marriage Passes in North Carolina, N.Y.

TIMES, May 9, 2012,

at A15.

205

HAW. CONST. art. 1, § 23 (“The legislature shall have the power to reserve marriage to

opposite-sex couples.”).

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248 WEST VIRGINIA LAW REVIEW [Vol. 115

Like the elected representatives of many other states, the Hawaiian

legislature reached a compromise solution regarding same-sex couples’

recognition.

206

It defined marriage as the union of one man and one woman, but

it also invented the status of reciprocal beneficiary, extending some of the

rights and duties of marriage to other co-habitants who could not legally marry

based on their sex or close family relationship.

207

For instance, an aunt and

nephew sharing a household could register as reciprocal beneficiaries, as could

same-sex couples.

Over the past decade, Hawaii has occasionally reconsidered the

marriage question. Finally, in 2011, it enacted a quasi-marriage civil union law

offering the benefits and responsibilities, but not the label, of marriage.

208

These civil unions are available to both different- and same-sex couples.

209

Hawaii also continues to allow non-coupled pairs, who do not qualify for either

different-sex marriage or a gender neutral civil union, to register as reciprocal

beneficiaries.

210

Thanks to the flexibility allowed by the Hawaiian constitution, the

legislature in Hawaii can change its policy in whatever way it deems wise as

popular opinion changes on this subject. Unfortunately, that is no longer an

option in other states, which rejected the Hawaiian model and were unable to

resist the temptation to embed their particular temporary public policy ideas in

state constitutions. Thirty states have passed constitutional amendments

restricting marriage to different-sex couples.

211

On the other hand, lawmakers

have sought compromise even in many of these states, and seven of the states

with anti-gay constitutional amendments now also recognize some form of civil

union or domestic partnership for same-sex couples.

212

Thus, legal recognition of family relationships continues to progress,

even as states put the brakes on the evolution of marriage. As described above,

marriage is largely a conservative institution, which promotes stability,

security, adult caretaking, and child welfare. Yet it has remained highly

relevant and popular because it evolved over time to suit a changing society.

Now social conservatives have tried to stop this evolution before it allows

same-sex couples to marry, leaving society to seek out alternative outlets for

206

As Judge Scalia remarked in Lawrence v. Texas, “[o]ne of the benefits of leaving

regulation of this [sodomy regulation] matter to the people rather than to the courts is that the

people, unlike judges, need not carry things to their logical conclusion [of marriage equality].”

Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting).

207

HAW. REV. STAT. § 572C-1 (West 2012).

208

Id. § 572B-9.

209

Id. § 572B-2.

210

Id. § 572C-4.

211

See infra Part III.B.1.

212

See infra note 271 and accompanying text.

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2012] THE REACTIONARY ROAD TO FREE LOVE 249

change. Some of their most potent—and myopic—weapons have been the anti-

gay state constitutional marriage amendments addressed below.

III. F

OREVER FROZEN IN 2004: THE CONSTITUTIONAL AMENDMENT

STRATEGY

More than three years before a Massachusetts Supreme Judicial Court

decision led to the first legal same-sex marriages in the United States,

conservative interest groups and politicians successfully pushed to permanently

ban same-sex marriage in the Alaska and Nebraska state constitutions.

213

Over

the next eight years twenty-seven additional states would join them.

214

Decades earlier, some European nations adopted constitutional

marriage provisions.

215

The provisions were broadly drafted to defend marriage

and family against economic distress and the specter of totalitarian state

interference. American constitutional amendments, in contrast, focus on the one

very specific thing they are “defending” marriage against—same-sex

couples.

216

The European examples could have served as models for protecting

families and the privileged status of marriage generally. Americans’ choice of

very specific anti-gay amendments instead indicates that their motivating

impulse was likely disapproval of gay couples rather than felicity towards

marriage. Like state anti-miscegenation amendments before them, they were

aimed at excluding disfavored spouses, yet justified as protecting marriage and

children.

217

Section A of this part describes German and Hungarian constitutional

provisions, which focus on marriage generally, ensuring private autonomy and

protecting and caring for women and children. It also briefly describes

distinctions drawn by European high courts as they upheld same-sex marriage

213

See supra note 42 (regarding Alaska and Nebraska).

214

Missouri, Nevada (2002), Arkansas, Georgia, Louisiana, Kentucky, Michigan, Mississippi,

Montana, North Dakota, Ohio, Oklahoma, Oregon, Utah (2004), Kansas, Texas (2005), Alabama,

Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, Wisconsin (2006), Arizona,

California, Florida (2008). See State by State, supra note 204. Later, North Carolina enacted an

amendment in 2011. See infra note 259.

215

See infra notes 221–233.

216

Arguably, some—but not all—of the amendments also prohibit polygamy. Compare N.C.

CONST. art. XIV, § 6 (establishing “marriage between one man and one woman” as the “only

domestic legal union” valid in North Carolina), with G

A. CONST. art. I, § 4, para. 1 (apparently

ignoring polygamy while specifying that “[n]o union between persons of the same sex shall be

recognized by this state as entitled to the benefits of marriage”).

217

See Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem,

53 G

EO. L.J. 49, 51 (1964) (listing six states with anti-miscegenation constitutional provisions

and nineteen states with anti-miscegenation statutes just three years before the Supreme Court

held in Loving v. Virginia, 388 U.S. 1, 11–12 (1967), that state’s anti-miscegenation statute

reflected the doctrine of “white supremacy” and violated the Fourteenth Amendment).

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250 WEST VIRGINIA LAW REVIEW [Vol. 115

light statutes against challenges under these constitutional provisions. Section B

describes the anti-gay marriage amendments enacted in U.S. states, classifying

them into four groups, analyzing the possibility of enacting marriage light

regimes under the various amendments, and suggesting that courts read

narrowly these specific constitutional policy restrictions on the options of

future democratic majorities.

A. Constitutional Amendments Protecting Marriage in Germany and

Hungary

In 1972, more than two thirds of the United States Congress passed an

Equal Rights Amendment, which would have guaranteed women and men

equal rights under the U.S. Constitution.

218

However, ratification by state

governments fell three states short because, in part, of the argument that gender

equality would require marriage equality for same-sex couples.

219

Twenty-three years earlier, the new post-war constitutions of both East

and West Germany included provisions promoting gender-based equality under

the law.

220

The West German version (the “Basic Law”) also included an article

guaranteeing state protection of marriage, family, mothers, and children.

221

The 1949 German Basic Law was adopted long before any popular

debate about same-sex marriage. However, its proponents in the conservative

218

Eileen Shanahan, Equal Rights Amendment Is Approved by Congress, N.Y. Times, Mar.

23, 1972, at A1. Equal rights amendments (“ERAs”) had been introduced in the U.S. Congress

since 1923.

219

See Mary Ziegler, The Terms of the Debate: Litigation, Argumentative Strategies, and

Coalitions in the Same-Sex Marriage Struggle, 39 F

LA. ST. U. L. REV. 467, 476–77. Although

supporters of the amendment argued that it would not result in same-sex marriage, opponents of

the federal ERA disagreed. ERA opponents appear to have had a point. When Hawaii became the

first state to recognize that discrimination against same-sex couples was facially unconstitutional,

it did so on the basis of its state ERA. See Baehr v. Lewin, 852 P.2d 44, 66–67 (Haw. 1993).

220

GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC

LAW], May 23, 1949, BGBl. I, art. 3.2 (Ger.), available at https://www.btg-

bestellservice.de/pdf/80201000.pdf (“Men and women shall have equal rights. The state shall

promote the actual implementation of equal rights for women and men and take steps to

eliminate disadvantages that now exist.”); V

ERFASSUNG DER DEUTSCHE DEMOKRATISCHE

REPUBLIK [CONSTITUTION], Oct. 7, 1979, art. 7 (Ger. Dem. Rep.), available at

http://translate.google.com/translate?hl=en&sl=de&u=http://www.verfassungen.de/de/ddr/ddr49-

i.htm&prev=/search%3Fq%3Dverfassung%2Bder%2Bdeutsche%2Bdemokratische%2Brepublik

%2Bart%2 (“[M]en and women have equal rights. All laws and regulations that hinder the equal

rights of women, are waived.”).

221

GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC

LAW], May 23, 1949, BGBl. I, art. 6 (Ger.), available at https://www.btg-

bestellservice.de/pdf/80201000.pdf (“Marriage and the family shall enjoy the special protection

of the state. . . . The care and upbringing of children is the natural right of parents and a duty

primarily incumbent upon them. . . . Every mother shall be entitled to the protection and care of

the community.”).

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2012] THE REACTIONARY ROAD TO FREE LOVE 251

Christian Democratic Union (“CDU”) asserted many arguments echoed later by

advocates of anti-gay marriage amendments in the United States. They argued

that marriage was based on God-ordained, natural law, which pre-existed state

legislation.

222

The centrality of the family-unit was a starting point for an

ordered society, and the family must contain a sphere of free Lebensraum

(living space), largely beyond the reach of the state.

223

They also believed that

wives and mothers should be free of the pressures of the labor market so that

they could stay at home to care for children.

224

In the end, the CDU had to compromise with other political parties,

resulting in the broad and flexible language of Article Six of the Basic Law,

which guarantees that “[m]arriage and the family shall enjoy the special

protection of the state.”

225

Article Six also added specific provisions

guaranteeing parental rights to care for their children, a community duty to care

for mothers, and legal protection for illegitimate children.

226

The provisions in the Basic Law guaranteeing gender equality and

protecting marriage and family were both reactions to the views of individuals

and families as tools of the state in the totalitarian regimes of Germany’s recent

Nazi past and then-contemporary communist East Germany. For instance, the

Nazi government had blocked women from certain professions and relegated

them to the roles of mothers and homemakers for the future of a racially-

defined German nation.

227

Women and their bodies were “subordinated to the

222

Compare ROBERT G. MOELLER, PROTECTING MOTHERHOOD: WOMEN AND THE FAMILY IN

THE

POLITICS OF POSTWAR WEST GERMANY 64 (1993), available at

http://publishing.cdlib.org/ucpressebooks/view?docId=ft3c6004gk&brand=ucpress (citing the

views of leading CDU delegates to the Parliamentary Council, which drafted the Basic Law),

with Gallagher, supra note 147, at 39–40, 42–51 (describing the natural law inspired arguments

for modern opponents of same-sex marriage); Bennett, supra note 147 (same).

223

MOELLER, supra note 222, at 65.

224

Id. at 66.

225

GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC

LAW], May 23, 1949, BGBl. I, art. 6.1 (ger.), available at https://www.btg-

bestellservice.de/pdf/80201000.pdf. M

OELLER, supra note 222, at 69 (attributing this compromise

to Free Democratic Party leader and West Germany’s first president, Theodor Heuss).

226

GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC

LAW], May 23, 1949, BGBl. I, art. 6.2–6.5, available at https://www.btg-

bestellservice.de/pdf/80201000.pdf. Some CDU delegates argued that illegitimate children

should not be treated the same as those who were legitimate, but they failed in the end. M

OELLER,

supra note 222, at 66–67. In the end, it took twenty years until the declared equality of

illegitimate children was finally enforced by the German Constitutional Court

(Bundesverfassungsgericht). Inga Markovits, Constitution Making After National Catastrophes:

Germany in 1949 and 1990, 49 W

M. & MARY L. REV. 1307, 1320 (2008).

227

MOELLER, supra note 222, at 39, 46, 50–51.

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252 WEST VIRGINIA LAW REVIEW [Vol. 115

expansionist needs of the Volk.”

228

Children had also been taken from fit

parents and given to others preferred by the state.

229

Article Six’s protection of “marriage and family” was also a reaction to

the gender equality provision of the Basic Law. Responding to fears that gender

equality might be interpreted to require women to do work to which they were

“unsuited,” to conscript them into the military, or to deny spousal support after

divorce, Article Six was meant to clarify the importance of the family and the

value of women who chose to work in the home.

230

One thing the Basic Law did not do was define marriage or family. Nor

did it expressly address issues with regard to same-sex couples. This became

clear many years later when the German Constitutional Court upheld broad

federal legislation recognizing registered same-sex life partnerships as

consistent with the protection of marriage in Article Six.

231

The West German Basic Law was highly influential, serving as a

model for constitutions in Greece, Portugal, Spain, South Africa, and many

new democratic constitutions throughout Eastern Europe, including Hungary.

232

Hungary’s constitution thus guaranteed that the “Republic of Hungary shall

protect the institutions of marriage and family.”

233

By 2007, the Hungarian liberal party began to seek marriage equality

for same-sex couples.

234

Although it failed to pass marriage legislation, it was

able to convince its socialist coalition partner to join in enacting a compromise

228

Id. at 50.

229

Nigel Jones, Kidnapped; Hitler Stopped at Nothing in His Sinister Bid to Create a Master

Race. As a New Radio Documentary Reveals, His Evil Henchmen Even Snatched Children from

the Streets to Fill His Secret Orphanages. Its Presenter, Nigel Jones, Meets Some of the

Survivors, D

AILY MAIL (UK), June 11, 2005, at 10, available at 2005 WLNR 9328854; Ron

Laytner, Hitler’s Children, S.

FLA. SUN-SENTINEL, Sept. 15, 1985, at 13, available at 1985

WLNR 1049006.

230

MOELLER, supra note 222, at 41, 49, 52, 56–57.

231

See generally Entscheidungen des Bundesverfassungsgerichts [BVerfGe] [Federal

Constitutional Court] July 17, 2002, 1 BvF 1/01 (Ger.), available at http://

www.bundesverfassungsgericht.de/entscheidungen/fs20020717_1bvf000101en.html (reasoning,

among other considerations, that the limitation of German registered life partnerships to same-

sex couples clearly distinguished them from the unaffected institution of different-sex marriage).

232

Markovits, supra note 226, at 1338–39.

233

154/2008 (XII.17.) AB, Korm. (Governmental Decision No. 154/2008 (XII.17. AB))

(Hung.) (quoting from Hungary’s 1989 Constitution and describing constitutional changes of that

era, which maintained this provision), available at http://www.mkab.hu/

letoltesek/en_0154_2008.pdf [hereinafter Hungarian Decision].

234

Tams Dombos, Constitutional Court Affirms Registered Partnership, EUROPEAN

COMMISSION ON SEXUAL ORIENTATION

LAW (Mar. 23, 2010), http://www.sexualorientationlaw.eu/news/2010-03-

23%20Hungarian%20Constitutional%20 Court.html.

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2012] THE REACTIONARY ROAD TO FREE LOVE 253

registered partnership act.

235

Unlike German life-partnerships, these Hungarian

partnerships would be open to both different and same-sex couples.

236

However, that was not to be.

Before the new registered partnership act came into effect, the

Hungarian Constitutional Court struck it down based on Hungary’s

constitutional promise to “protect the institutions of marriage and family.”

237

However, the Court based its decision on particular problems with the inclusion

of different-sex couples in the registered partnership scheme.

238

It reasoned that

a marriage light regime that was clearly different from marriage would be

acceptable, but it found that different-sex registered partnerships and marriage

had the same function and could “be regarded as ‘interchangeable’ legal

institutions,” violating the constitutional obligation to protect marriage.

239

Finding the relevant provisions of the statute were not severable, the

Hungarian Constitutional Court struck down the act in its entirety.

240

However,

its opinion made clear that the Court would view the statute differently if it

applied only to same-sex couples.

241

Citing German, French and Belgian

constitutional court opinions, the Hungarian Court noted the importance of

details in distinguishing particular marriage light regimes from marriage.

242

agreed with the German constitutional court’s reasoning that a couples’ same-

sex nature and inability to marry under the law constituted a substantial

distinction.

243

The Hungarian court reasoned that legislation promoting other

constitutional values, such as individual dignity, “should grant” same-sex

couples “legal status—similar to that of the spouses—guaranteeing their

treatment as person[s] of equal dignity.”

244

It noted the status of marriage for

235

Hungarian Parliament Adopts New Registered Partnership Act, ILGA EUROPE (Apr. 20,

2009), http://www.ilga-europe.org/home/guide/country_by_country/hungary/Hungarian-

Parliament-adopts-new-registered-partnership-act.

236

Id.

237

See Hungarian Decision, supra note 233, at 3–7.

238

Id. at 13–14.

239

Id. at 15.

240

Id. at 17.

241

Id. at 1, 16; see also PETER PACZOLAY, JUDICIAL REVIEW AS A SUBSTITUTE FOR NOT YET

CONSTITUTED INSTANCES OF POPULAR SOVEREIGNTY 6 (2010), available at

http://www.venice.coe.int/docs/2010/CDL-UD(2010)013-e.pdf (report by the President of the

Constitutional Court of Hungary to the Venice Commission, the European Commission for

Democracy through Law, stating that “under the same decision a partnership scheme only for

homosexual couples would be constitutional”).

242

See Hungarian Decision, supra note 233, at 10.

243

Id.

244

Id. at 16.

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254 WEST VIRGINIA LAW REVIEW [Vol. 115

different-sex couples “is not affected, injured or threatened” by such legal

recognition of same-sex couples.

245

Just months after the gender-neutral act was struck down, the

Hungarian legislature enacted a registered partnership law granting most of the

rights and responsibilities of marriage exclusively to same-sex couples.

246

The

Hungarian Constitutional Court upheld this new version of the law.

247

More recently, Hungarian politics has taken a serious turn to the right,

and the conservative new legislative majority has enacted a controversial new

constitution beginning with the phrase “God bless the Hungarians,” which

includes a provision that “protect[s] the institution of marriage as the union of a

man and a woman . . . and the family as the basis of the nation’s survival.”

248

However, both the Hungarian government and the European Commission for

Democracy through Law have read this more American-style anti-gay marriage

definition to be consistent with Hungary’s extensive same-sex registered

partnership law.

249

Similar logic could apply to uphold exclusive same-sex

marriage light regimes in United States jurisdictions with constitutional

marriage amendments.

The older European constitutional provisions illustrated above have

existed to protect and promote different-sex marriages since the years following

World War II. However, when they became interested in “defending marriage”

in the 1990s, American activists ignored these ready examples. Their

reactionary amendments focused solely on defending marriage against the

same-sex couples, whom European high courts viewed as no threat to different-

sex marriage.

245

Id.

246

The exceptions are the right to take a common surname and rights related to adoption and

assisted reproductive technology. Hungary Approves Partnership Legislation, ILGA

EUROPE

(Dec. 18, 2007), http://www.ilga-europe.org/home/guide/country_by_country/hungary/hungary_

approves_partnership_legislation.

247

Constitutional Court Affirms Registered Partnership, EUR. COMM’N ON SEXUAL

ORIENTATION L. (Mar. 23, 2010), http://www.sexualorientationlaw.eu/news/2010-03-

23%20Hungarian%20Constitutional%20Court.html.

248

A MAGYAR KÖZTÁRSASÁG ALKOTMÁNYA [CONSTITUTION OF THE REPUBLIC OF HUNGARY]

Apr. 25, 2011, Foundation, art. L (Hung.), available at http://www.kormany.hu/download/

2/ab/30000/Alap_angol.pdf. This religiously grounded constitution also protects “embryonic and

foetal life . . . from the moment of conception.” Id. at art. II (Freedom and Responsibility).

249

Parliament Has Adopted Hungary’s New Constitution, WEBSITE OF THE HUNGARIAN

GOV’T, (Apr. 20, 2011, 1:35 PM), http://www.kormany.hu/en/ministry-of-public-administration-

and-justice/news/parliament-has-adopted-hungary-s-new-constitution; Opinion on the New

Constitution of Hungary, Venice Commission, 87th Plenary Sess., June 17–18, 2011, Op. No.

621/2011, CDL-AD(2011)016 (June 20, 2011).

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2012] THE REACTIONARY ROAD TO FREE LOVE 255

B. Anti-Gay American Constitutional Amendments

In upholding New York’s former restriction of marriage to different-

sex couples, a majority of that state’s high court reasoned “[w]e do not predict

what people will think generations from now, but we believe the present

generation should have a chance to decide the issue through its elected

representatives.”

250

In fact, the New York legislature would decide in favor of

marriage equality just five years later.

251

Conservative legislatures in many

other states took the present generation’s prerogatives a step further, taking

advantage of strong temporary majorities to lock in their particular current idea

of marriage, refusing to allow future generations a choice through the normal

legislative process.

Three years after Nebraska joined Alaska as the first U.S. states

constitutionally defining marriage to exclude same-sex couples, Massachusetts

became the first U.S. state to recognize same-sex marriage.

252

That year,

constitutional amendments prohibiting same-sex marriage recognition appeared

on the ballots of eleven states. All of them passed, and they were popularly

viewed as a key to President Bush’s reelection in 2004.

253

Karl Rove, whom the

President described as “the architect” of his victory, described the marriage

issue as one of the most powerful forces in politics at that time, taking notice of

exit polls that showed “moral values” ranking unusually highly among 2004

voter motivations.

254

Politicos on the right and left reasoned that Rove had

brilliantly managed state marriage referenda to turn out four million

conservative Christian voters, who had not voted in 2000, and to tilt undecided

voters to support Bush as the champion of traditional marriage.

255

Christian

conservatives agreed, taking credit for the election result.

256

250

Hernandez v. Robles, 855 N.E.2d 1, 12 (N.Y. 2006).

251

See Barbaro, supra note 194, at A1.

252

See Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941 (Mass. 2003); sources cited supra

note 42 (describing these first anti-gay marriage amendments);

253

Thad Kousser & Mathew D. McCubbins, Social Choice, Crypto-Initiatives, and

Policymaking by Direct Democracy, 78 S.

CAL. L. REV. 949, 969–72 (2005) (describing some

marriage amendments as “crypto-initiatives” designed to accomplish goals other than

policymaking); Glen Staszewski, The Bait-and-Switch in Direct Democracy, 2006

WIS. L. REV.

18, 18 (2006); Alan Cooperman & Thomas B. Edsall, Evangelicals Say They Led Charge for the

GOP, W

ASH. POST, Nov. 8, 2004, at A1 (calling ballot referendums against same-sex marriage

“[o]ne of the most successful tactics of social conservatives” and an “election-year bonanza”).

254

Elisabeth Bumiller, Turnout Effort and Kerry, Too, Were G.O.P.’s Keys to Victory, N.Y.

TIMES, Nov. 4, 2004, at A1; Adam Nagourney, “Moral Values” Carried Bush, Rove Says, N.Y.

TIMES, Nov. 10, 2004, at A20; Transcript of President Bush’s Victory Speech, N.Y. TIMES, Nov.

4, 2004, at P2.

255

See David D. Kirkpatrick, In Fight Over Gay Marriage, Evangelicals Are Conflicted, N.Y.

TIMES, Feb. 28, 2004, at A10 (describing Rove’s increasing focus on Christian conservative

turnout); but see Pam Belluck, Maybe Same-Sex Marriage Didn’t Make the Difference, N.Y.

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256 WEST VIRGINIA LAW REVIEW [Vol. 115

Whether this narrative is accurate or not, it was influential. Marriage

amendments appeared on ballots again in 2006 and 2008, the next national

election years.

257

The amendments continued to pass, but the general election

results were less favorable for their conservative proponents.

258

Most recently,

North Carolina voters passed a constitutional amendment in May, 2012.

259

Minnesota voters will decide on an amendment in November.

260

Maryland,

Washington and Maine voters will also be deciding about same-sex marriage in

November, but those referenda merely present a choice of whether to accept

marriage equality immediately, rather than whether to amend state constitutions

to prohibit it forever.

261

TIMES, Nov. 7, 2004, (Week in Review) § 4, at 5 (arguing that the marriage amendments may not

have been decisive after all). There is some dispute as to whether Rove manipulated the advent of

these state amendments or just enjoyed undeserved credit for political serendipity and the hard

work of others. Cooperman & Edsall, supra note 253, at A1 (citing anti-gay Christian activists

who denied Democratic suspicions that Karl Rove engineered the ballot initiatives, taking credit

for them and finding they overcame initial White House resistance).

256

See, e.g., Bumiller, supra note 254, at A1 (citing the Vice President of the anti-gay group

Focus on the Family’s statements regarding the increased Christian conservative turnout for Bush

in 2004); Cooperman & Edsall, supra note 253, at A1 (quoting the president of the Family

Research Council as referring to same-sex marriage as “the hood ornament on the family values

wagon that carried the president to second term”); David D. Kirkpatrick & Sheryl Gay Stolberg,

Backers of Gay Marriage Ban Use Social Security as Cudgel¸ N.Y.

TIMES, Jan. 25, 2005, at A17

(citing a letter from the leaders of Focus on the Family, the Family Research Council, and the

Southern Baptist Convention, among others, for “an unprecedented number of African-

Americans, Latinos and Catholics who broke with tradition and supported the president[‘s

election] solely because of this issue” of same-sex marriage) (emphasis added).

257

Adam Nagourney, Looking to Win in November, With a 2-Year-Old Playbook, N.Y. TIMES,

Apr. 16, 2006, (Week in Review) § 4, at 1 (pointing to an election year Senate vote on the

proposed Federal Marriage Amendment and at least seven state constitutional amendments on

2006 ballots as a renewed get-out-the-vote effort aimed at religious conservatives).

258

Michael Cooper, Among Republicans, a Debate Over the Party’s Roadmap Back to Power,

N.Y.

TIMES, Nov. 17, 2008, at A17 (describing disagreement among Republicans regarding

whether to deemphasize social issues like opposition to same-sex marriage or to double down on

them following two major Republican electoral defeats). Arizona voters actually rejected a

marriage amendment that also prohibited domestic partnerships in 2006, but it enacted an

amendment limited to defining marriage in 2008. Mary Jo Pitzl, Gay-Marriage Vote Polarizes

Ariz., A

RIZ. REPUBLIC, Nov. 11, 2008, at B1, available at 2008 WLNR 26463795.

259

See sources cited supra note 204. The decision of the North Carolina legislature to break

with the pattern of holding marriage amendment referenda in conjunction with major general

elections may be a concession to the more ambiguous changing political dynamics of the

marriage question as well as the desire of North Carolina Democrats to avoid a repeat of the

Republican successes of 2004. These changing dynamics are also illustrated by referenda this

year to recognize marriage equality in Maine. See sources cited supra note 195.

260

Nicholas Confessore, Beyond New York, Gay Marriage Faces Hurdles, N.Y. TIMES, June

27, 2011, at A1 (referring to the Minnesota referendum to ban marriage equality that will be

decided in 2012).

261

See sources cited supra note 195.

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2012] THE REACTIONARY ROAD TO FREE LOVE 257

In addition to supporting anti-gay state marriage amendments in 2004,

President Bush also endorsed a federal constitutional amendment that would

take the marriage issue away from states and expressly foreclose marriage to

same-sex couples under the United States Constitution.

262

While the language

of proposed federal marriage amendments has varied,

263

the version President

Bush favored would have left open the option for states to enact their own

marriage light regimes, apparently including quasi-marriage civil unions.

264

Conservative advocates of traditional marriage should join gay rights activists

in rejoicing that this proposed federal amendment failed. It would have forced

the seven U.S. jurisdictions that now allow marriage to switch to marriage light

alternatives. It would have also channeled the entire marriage debate in the

direction of non-marital alternatives. As described below, this could seriously

undermine the privileged position of marriage in American laws and society.

265

The following discussion illustrates how state marriage amendments

limit the options of democratic change remaining for future generations and the

likely outcome of those limitations. Subsection One categorizes anti-gay state

marriage amendments into four groups and analyzes their likely effect on the

marriage light options available to future legislatures. Subsection Two looks at

the peculiarly undemocratic nature of amendments, which withdraw specific

policy decisions from future legislative majorities without the justification of

protecting individual liberties or vulnerable minorities. It compares this anti-

democratic “dead hand” control to medieval efforts to control property rights

262

Mike Allen & Alan Cooperman, Bush Backs Amendment Banning Gay Marriage;

President Says States Could Rule on Civil Unions, W

ASH. POST, Feb. 25, 2004, at A1.

263

See S.J. Res. 26, 108th Cong. (2003); H.J. Res. 56, 108th Cong. (2003). Both contain

identical language that “Marriage in the United States shall consist only of the union of a man

and a woman. Neither this Constitution or the constitution of any State, nor state or federal law,

shall be construed to require that marital status or the legal incidents thereof be conferred upon

unmarried couples or groups,” arguably prohibiting any state recognized benefits and duties of

marriage to same-sex relationships. Id. (emphasis added). But see H.J. Res. 106, 108th Cong.

(2004); S.J. Res. 43, 110th Cong. (2008). Where the language above was changed to read as

follows: “Neither this Constitution, nor the constitution of any State, shall be construed to require

that marriage or the legal incidents thereof be conferred upon any union other than the union of a

man and a woman[,]” silencing any argument that would limit state authority to establish

marriage light institutions for same-sex couples by statute. Id.

264

See Elisabeth Bumiller, Bush Backs Ban in Constitution on Gay Marriage, N.Y. TIMES,

Feb. 25, 2004, at A1 (“‘The amendment should fully protect marriage while leaving the state

legislatures free to make their own choices in defining legal arrangements other than marriage,’

said Mr. Bush . . . .”); Elisabeth Bumiller, Bush Says His Party Is Wrong to Oppose Gay Civil

Unions, N.Y.

TIMES, Oct. 26, 2004, at A21 (“Mr. Bush said, ‘I don’t think we should deny people

rights to a civil union, a legal arrangement, if that’s what a state chooses to do . . . .’ He added: ‘I

view the definition of marriage different from legal arrangements that enable people to have

rights . . . states ought to be able to have the right to pass laws that enable people to be able to

have rights like others.’”).

265

See infra Part V.

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258 WEST VIRGINIA LAW REVIEW [Vol. 115

far into the future and gives three reasons to interpret ambiguous marriage

amendments narrowly when they conflict with later legislative or popular

majorities.

1. Four Categories of Anti-Gay Marriage Amendments and the

Likely Effects of Each

One of the most common arguments for state marriage amendments

and revisions over the last decade was the need to keep the definition of

marriage out of the hands of “activist” judges and leave the decision up to the

democratic process.

266

Of the thirty-one states adopting constitutional marriage

provisions, however, only Hawaii left room for the possibility that the

democratic majority might change. Hawaii’s amendment merely clarified the

state legislature’s authority to define marriage without judicial interference.

267

Unfortunately, every other state amendment set an anti-gay definition of

marriage in constitutional stone, withdrawing the question from future

legislatures as well as judges.

The thirty states with anti-gay constitutional marriage provisions can

be categorized into four groups. The first group is comprised of ten states with

constitutional amendments merely defining “marriage” to exclude same-sex

couples.

268

None of these states can recognize full-fledged same-sex marriage

without amending their constitutions. Yet, like the Hungarian provision

discussed above, these amendments do not appear to bar non-marital forms of

266

See James Dao, State Action is Pursued On Same-Sex Marriage, N.Y. Times, Feb. 27,

2004, at A24 (quoting Mike Crotts, a Republican state senator who sponsored Georgia’s

amendment explaining that his bill “focused on activist judges who don’t rule from the bench

based on the law, but based on their personal views or opinions”); Sarah Kershaw, The 2004

Elections: Issues–Gay Marriage; Constitutional Bans on Same-Sex Marriage Gain Widespread

Support in 10 States, N.Y. T

IMES, Nov. 3, 2004, at P9 (quoting Gary Bauer, chairman of a

political action committee that supported the state marriage amendments, assessing them as “a

warning shot across the bow to activist judges”); Nagourney, supra note 254, at A20 (quoting

Karl Rove, President Bush’s chief political advisor, attributing the success of eleven state

marriage amendments in 2004 to impatience with “a few activist judges”).

267

HAW. CONST. art. I, § 23 (“The legislature shall have the power to reserve marriage to

opposite-sex couples.”). The legislature then moved to limit marriage to different-sex couples

and to recognize reciprocal beneficiary status for pairs who could not marry. See sources cited

supra notes 207–208 and accompanying text.

268

ALASKA CONST. art. 1, § 25; ARIZ. CONST. art. XXX, § 1; CAL. CONST. art. I, § 7.5; COLO.

CONST. art. II, § 31; MISS. CONST. art. XIV, § 263A; MO. CONST. art. I, § 33; MONT. CONST. art.

XIII, § 7; N

EV. CONST. art. I, § 21; OR. CONST. art. XV, § 5A; TENN. CONST. art. XI, § 18. While

Tennessee’s amendment literally includes more than a definition of “marriage,” it still limits all

of its prohibitions to “marital contract[s]” and “marriage.”

TENN. CONST. art. XI, § 18. But see

Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) (holding C

AL. CONST. art. I, § 7.5

unconstitutional), petition for cert. filed, 81 U.S.L.W. 3075 (U.S. July 30, 2012) (No. 12-144).

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2012] THE REACTIONARY ROAD TO FREE LOVE 259

recognition for same-sex couples, including quasi-marriage civil unions.

269

This

distinction is certainly consistent with the record in Arizona, where voters

rejected a broad proposition that would have limited marriage light options

before approving a narrower amendment focused only on defining marriage.

270

In fact, seven of the ten states in this group have already recognized some level

of rights for same-sex couples in spite of the amendments.

271

Elected

representatives in the remaining states—Mississippi, Missouri and Tennessee—

can constitutionally enact such legislation too if the politics dictate.

Twenty states have adopted broader constitutional amendments

purporting to do more than merely restrict the definition of marriage.

272

The

amendment language varies from state to state, but most of them (the second

and third groups below) leave room for semi-marriage options.

The second group consists of seven states, which merely prohibit

recognition of non-marital unions identical or substantially similar to

marriage,

273

indicating—by implication—that unions which are similar, but not

269

See supra Part III.A.

270

Compare Ariz. Dep’t of State, Office of the Sec’y of State, 2006 Ballot Propositions:

Proposition 107 (unsuccessful), A

Z.GOV, http://www.azsos.gov/election/2006/info/

pubpamphlet/english/Prop107.htm (last visited Oct. 13, 2012) (prohibiting any “legal status for

unmarried persons” in addition to defining marriage to exclude same-sex couples), with Ariz.

Dep’t of State, Office of the Sec’y of State, 2008 Ballot Propositions: Proposition 102

(successful), A

Z.GOV, http://www.azsos.gov/election/2008/info/pubpamphlet/

english/prop102.htm (last visited Oct. 13, 2012) (merely defining “marriage”).

271

See, e.g., Oregon Family Fairness Act, 2007 Or. Laws Ch. 99 (H.B. 2007) , OR. REV. STAT.

ANN. § 106.300 (West 2008) (providing most of the state rights and responsibilities of marriage).

272

Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan,

Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas,

Utah, Virginia, Wisconsin. See sources cited infra notes 273–276, 283–290 and accompanying

text.

273

ALA. CONST. art. I, § 36.03 (prohibiting both “common law marriage of parties of the same

sex” and unions “replicating marriage of or between persons of the same sex in the State of

Alabama”); A

RK. CONST. amend. 83, §§ 1–3 (prohibiting status “identical or substantially similar

to marital status” in Arkansas); F

LA. CONST. art. I, § 27 (prohibiting any non-marital “legal union

that is treated as marriage or the substantial equivalent thereof” in Florida); K

Y. CONST. § 233A

(proscribing “legal status identical or substantially similar to that of marriage for unmarried

individuals” in Kentucky); N.D.

CONST. art. XI, § 28 (proclaiming that “[n]o other domestic

union, however denominated may be recognized as a marriage or given the same or substantially

equivalent legal effect”); U

TAH CONST. art. I, § 29 (“No other domestic union, however

denominated, may be recognized as a marriage or given the same or substantially equivalent

legal effect.”); W

IS. CONST. art. XIII, § 13 (proscribing “legal status identical or substantially

similar to that of marriage for unmarried individuals”). The Texas amendment could also be

grouped into this category, but they omitted the word “substantially,” prohibiting recognition of

“any legal status identical or similar to marriage.” T

EX. CONST. art. I, § 32. While it is otherwise

similar to the seven provisions described above, the alteration seems to leave it with more in

common with Georgia and other states that have ambiguous language regarding exactly what is

“similar” enough to marriage to be prohibited, and I have grouped it accordingly. See sources

cited infra notes 277–280 and accompanying text.

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260 WEST VIRGINIA LAW REVIEW [Vol. 115

“substantially” so, would be acceptable. Wisconsin, whose constitution

prohibits “[a] legal status identical or substantially similar to that of marriage

for unmarried individuals, “has already enacted a semi-marriage domestic

partnership law.

274

Anti-gay activists challenged the law under Wisconsin’s

marriage amendment, but the domestic partnership status has been upheld as

not “identical or substantially similar to” marriage in the only opinion

announced thus far.

275

The Wisconsin public would likely agree. Just six

months before the vote in favor of the constitutional amendment, a poll showed

that Wisconsin residents favored both civil unions and the anti-gay marriage

amendment.

276

The possibility of marriage light is less clear in the third group of

states. These nine states all adopted amendments that are facially ambiguous

regarding whether they prohibit recognition of unions covering any of the

benefits of marriage or all of those benefits.

277

The Georgia marriage

274

Compare WIS. CONST. art. XIII, § 13 (proscribing “legal status identical or substantially

similar” to marriage), with W

IS. STAT. ANN. § 770.001 (West 2012) (establishing limited

domestic partnership system for the state of Wisconsin).

275

Decision and Order, Appling v. Doyle, No. 10-CV-4434 (Wis. Cir. Ct. June 20, 2011),

available at http://www.aclu.org/files/assets/10cv4434_1.pdf (granting summary judgment

against challenge to Wisconsin domestic partnership law on the basis of Wisconsin’s marriage

amendment). An appeal to the Wisconsin Supreme Court was certified by the Wisconsin Court of

Appeals. Appling v. Doyle, No. 2011AP1572, 2012 WL 2579687 (Wis. Ct. App. July 5, 2012).

276

Survey Hints at Less Support for Anti-Gay Marriage Amendment, WSAW.COM (Apr. 14,

2006, 12:46 PM), http://www.wsaw.com/home/headlines/2633976.html (sixty-one percent of

residents polled favored the marriage amendment, but fifty-nine percent favored civil unions for

different-sex couples and forty-eight percent favored them for same-sex couples, while only

forty-seven percent opposed those).

277

GA. CONST. art. I, § 4, ¶ I (“No union between persons of the same sex shall be recognized

by this state as entitled to the benefits of marriage.”); K

AN. CONST. art. XV, § 16 (prohibiting

recognition of any “relationship, other than marriage . . . entitling the parties to rights or incidents

of marriage”); L

A. CONST. art. XII, § 15 (in addition to a prohibition on “legal status identical or

substantially similar to that of marriage,” Louisiana prohibits any official from legally requiring

“that marriage or the legal incidents thereof be conferred upon any member of a [non-marital]

union”); N

EB. CONST. art. I, § 29 (“uniting of two persons of the same sex in a civil union,

domestic partnership, or other similar same-sex relationship shall not be valid” (emphasis

added)); O

HIO CONST. art. XV, § 11; OKLA. CONST. art. II, § 35 (prohibiting laws requiring “that

marital status or the legal incidents thereof be conferred upon unmarried couples or groups”);

S.D.

CONST. art. XXI, § 9 (“The uniting of two or more persons in a civil union, domestic

partnership, or other quasi-marital relationship shall not be valid or recognized in South

Dakota.”) (emphasis added); T

EX. CONST. art. I, § 32 (“This state or a political subdivision . . .

may not create or recognize any legal status identical or similar to marriage.”) (emphasis added);

A. CONST. art. I, § 15-A (prohibiting recognition of any “legal status to which is assigned the

rights, benefits, obligations, qualities, or effects of marriage”). One local Ohio court found that

the legal status of unmarried couples under Ohio’s Domestic Violence Act was inconsistent with

the quoted part of Ohio’s marriage amendment, but it went on to find this part of the state

amendment unconstitutional under the equal protection clause of the Fourteenth Amendment of

the U.S. Constitution. Phelps v. Johnson, No. DV05305642, 2005 WL 4651081 (Ohio Ct. Com.

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2012] THE REACTIONARY ROAD TO FREE LOVE 261

amendment, for example, states that “[n]o union between persons of the same-

sex shall be recognized . . . as entitled to the benefits of marriage.”

278

Obviously, the constitutionality of a semi-marriage in Georgia could hinge on

whether all or any of “the benefits of marriage” were covered by this

constitutional prohibition. This ambiguity was a primary focus of a superior

court decision and arguments on both sides of a constitutional challenge to the

amendment’s enactment as a prohibited multiple-objective amendment.

279

However, the Georgia Supreme Court unanimously punted on this question,

refusing—for now—to clarify the ambiguous language of the statute by

“adopt[ing] as the amendment’s objective, reserving marriage and its attendant

benefits to unions of man and woman.”

280

One of the most oddly formulated marriage amendments is Ohio’s

provision that “[t]his state and its political subdivisions shall not create or

recognize a legal status for relationships of unmarried individuals that intends

to approximate the design, qualities, significance or effect of marriage.”

281

Although grammatically the intending subject here appears to be the “legal

status,” a court would likely look to the legislature’s intent. Still, a great deal of

judicial creativity will be required to nail down when it “intends to

approximate” the named aspects of marriage.

282

The fourth group consists of Idaho, North and South Carolina, and—

probably—Michigan, which purport to prohibit all marriage light recognition.

Michigan’s amendment uses the malleable term “marriage or similar union” to

Pl. Nov. 28, 2005); but see State v. Abdellahi, No. 2005CRB6993, 2005 WL 4651078 (Ohio Ct.

Com. Pl. June 7, 2005) (reading the Ohio marriage amendment narrowly to find it consistent with

the Domestic Violence Act). One federal district court also found Nebraska’s amendment

unconstitutional, but that decision was reversed on appeal. Citizens for Equal Prot., Inc. v.

Bruning, 368 F. Supp. 2d 980, 985 (D. Neb. 2005), rev’d sub nom. Citizens for Equal Prot. v.

Bruning, 455 F.3d 859 (8th Cir. 2006).

278

GA. CONST. art. I, § 4, ¶ I.

279

See O’Kelley v. Perdue, No. 2004CV93494, 2006 WL 1350171, at *8 (Ga. Super. Ct., May

16, 2006), rev’d, Purdue v. O’Kelley, 632 S.E.2d 110, 113 (Ga. 2006) (holding that the objective

of the amendment language quoted is “to ensure that unions between persons of the same sex—

without restriction—are not afforded any of the advantages, rights or privileges afforded to

married same sex couples under state law”).

280

Perdue v. O’Kelley, 632 S.E.2d 110, 113 (Ga. 2006) (emphasis added). The decision that

this single objective encompassed both a heterosexual definition of marriage and the prohibition

of certain same-sex unions implies that the prohibition was limited to all of the “attendant

benefits” of marriage, but the court did not say so expressly. When it is called on to decide this

question in the future, hopefully it will consider the assumptions underlying Perdue. This

interpretation would be supported by the rule of construction described below, see

infra Part

III.B.2, and by the ballot language, which merely asked Georgia voters whether “this state shall

recognize as marriage only the union of man and woman.” Perdue, 632 S.E.2d at 111.

281

OHIO CONST. art. XV, § 11 (emphasis added).

282

Thus far, two Ohio trial courts have attempted to interpret the language of this amendment

with different results. See supra note 277.

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262 WEST VIRGINIA LAW REVIEW [Vol. 115

describe its prohibition, but—unlike states in group three—it may have

answered the “any” or “all” question, expressly adding “for any purpose” so

that it reads: “[T]he union of one man and one woman in marriage shall be the

only agreement recognized as a marriage or similar union for any purpose.”

283

This addition was a primary focus of the Michigan Supreme Court’s opinion

reading the amendment broadly to prohibit health-insurance benefits for same-

sex domestic partners of government employees.

284

In light of this decision,

Michigan may fit best in the fourth group with Idaho and the Carolinas.

285

Idaho’s constitution provides that “[a] marriage between a man and a woman is

the only domestic legal union that shall be valid or recognized in this state.”

286

North Carolina’s amendment is almost identical.

287

South Carolina prohibits

recognition other than marriage of “any . . . domestic union, however

denominated.”

288

Apparently anticipating this broad language could affect

prenuptial agreements, the North and South Carolina amendments clarify that

they do not prohibit domestic private contracts.

289

Idaho made no such

clarification.

In conclusion, ten states with constitutional amendments seem to leave

open the option of recognizing quasi-marriage with all of the legal benefits and

responsibilities of marriage, so long as they avoid the word “marriage.” Seven

additional states have adopted amendments, clearly implying the possibility of

some forms of semi-marriage. The language of nine anti-gay marriage

amendments is ambiguous, but leaves room for semi-marriage possibilities if

read to prohibit unions recognizing all rather than any of the benefits and

283

MICH. CONST. art. I, § 25 (emphasis added).

284

Nat’l Pride at Work, Inc. v. Governor of Mich., 748 N.W.2d 524 (Mich. 2008). The

opinion focused on the “for any purpose” language to the extent that the dissenting justices

argued that the majority had read “similar union” out of the amendment all together. Id. at 551

(Kelly, J., dissenting). The majority opinion admitted that the “for any purpose” language might

have been essential to reach the conclusion that domestic partner health insurance benefits were

precluded. Id. at 538.

285

National Pride at Work, Inc. may have left the door slightly ajar to less marriage-like

unions, since it focused on marriage-like prerequisites of the unions like lack of close blood ties,

but it is hard to imagine less marriage-specific consequences than the dependent healthcare

benefits already provided to domestic partners of employees of most major American companies.

286

IDAHO CONST. art. III, § 28.

287

N.C. CONST. art. XIV, § 6 (“Marriage between one man and one woman is the only

domestic legal union that shall be valid or recognized in this State.”) (emphasis added). Changing

“a” to “one” may be an attempt to be arithmetically certain that polygamy will not be recognized

in North Carolina.

288

S.C. CONST. art. XVII, § 15.

289

N.C. CONST. art. XIV, § 6 (“This section does not prohibit a private party from entering

into contracts with another private party . . . .”); S.C. C

ONST. art. XVII, § 15 (“This section shall

not prohibit or limit parties, other than the State or its political subdivisions, from entering into

contracts or other legal instruments.”).

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2012] THE REACTIONARY ROAD TO FREE LOVE 263

responsibilities of marriage. (As described in the following section, these

ambiguous provisions should be read narrowly to allow flexibility for future

lawmakers.) Finally, four states seem to have answered the “any” or “all”

question and purported to prohibit recognition of any benefits or duties for non-

marital “domestic unions.”

The few decisions interpreting state marriage amendments thus far

make it clear that the more those institutions vary from marriage, the more

likely they are to pass muster under the state amendments.

290

This will naturally

encourage experimentation by future legislatures that wish to constitutionally

establish some form of legal recognition for same-sex relationships.

2. Three Reasons for Construing “Dead Hand” Marriage

Amendments Narrowly

Unclear state anti-gay marriage amendments, like those in group three

above, should be construed narrowly for three reasons: (1) in order to limit the

specific policy decisions imposed by one generation on the next; (2) in order to

limit the effect of constitutional amendments to what was intended by referenda

voters; and (3) to read those amendments as consistently as possible with state

and federal constitutional guarantees of equality and due process.

With the exception of the amendment in Hawaii, every state

constitutional marriage amendment forecloses the options of future legislative

majorities recognizing same-sex marriage. Of course, it has always been

necessary to amend constitutions. For instance, updating basic rules to keep the

democratic system functioning or protecting minority rights beyond the realm

of normal legislative decision-making are familiar and uncontroversial.

291

Yet

the anti-gay marriage amendments do something different. They embody a

conservative strategy to enshrine temporarily-popular particular policy

positions in state constitutions to guard against changing public opinion.

292

290

See, e.g., Nat’l Pride at Work, Inc., 748 N.W.2d at 534–37 (focusing on “obviously

important, and apparently unique (at least in combination)” marriage-like requirements regarding

gender and lack of close blood connections to conclude that domestic partnerships recognized by

Michigan employers constituted “unions similar to marriage”).

291

See Scott Titshaw, Note, Sharpening the Prongs of the Establishment Clause: Applying

Stricter Scrutiny to Majority Religions, 23 G

A. L. REV. 1085, 1112–13 (1989) (describing the

function of the federal Bill of Rights and the Fourteenth Amendment as bulwarks protecting

minorities against the majority will as reflected in the laws enacted by a properly functioning

democratically-elected government).

292

See, e.g., MICH. CONST. art. I, § 25 (expressly stating its purpose for barring same-sex

relationship recognition in order “[t]o secure and preserve the benefits of marriage for our society

and for future generations of children”). This policy for perpetuity is similar to Eighteenth

Amendment of the U.S. Constitution (prohibition) and state anti-miscegenation amendments. See

Applebaum, supra note 217, at 51.

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264 WEST VIRGINIA LAW REVIEW [Vol. 115

Thomas Jefferson famously opined that constitutions should expire

every nineteen years so that each new generation could fashion one suitable to

its own time.

293

Some scholars have reached back beyond Jefferson’s time for a

term to describe one generation’s use of constitutions to limit the democratic

options of their descendants: the “dead hand.”

294

Jefferson may well have

agreed with this analogy between overreaching constitutional provisions and

the maligned efforts of medieval land barons to control the lives of unborn

progeny through clever will drafting. Constitutionally foreclosing the

legislative policy options of future citizens limits democracy as well as

individual liberty.

In the context of state marriage amendments and changing public

opinion, the dead hand control now in place is likely to become increasingly

problematic. In response, I propose neither Jefferson’s constitutional expiration

date nor a rule against political perpetuities. But judges battling the dead hands

of testators also employed another, more modest strategy in defense of

devisees, a tactic that may be appropriate in the context of constitutional

policymaking as well: namely, interpreting ambiguous provisions narrowly so

as to allow greater liberty to the living generation.

295

In the context of

constitutional marriage amendments, judges should follow this example by

reading ambiguous constitutional language narrowly to conflict as little as

possible with later legislation.

The anti-democratic aspect of the marriage amendments is particularly

problematic where the language was intentionally drafted to be vague in a

direct democracy “bait-and-switch,” allowing referendum proponents to claim

a limited intent prior to a popular vote, then a broad mandate afterwards.

296

least one state went a step further, employing ballot language that only referred

to a definition of marriage, while the actual corresponding amendment also

293

The Papers of Thomas Jefferson, Letter from Thomas Jefferson to James Madison (Sept. 6,

1789), in T

HE FOUNDERS’ CONSTITUTION, http://press-

pubs.uchicago.edu/founders/documents/v1ch2s23.html (last visited Oct. 14, 2012) (arguing that

“no society can make a perpetual constitution, or even a perpetual law [because t]he earth

belongs always to the living generation”).

294

See, e.g., Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108

OLUM. L. REV. 606, 609, 613–25 (2008) (describing the long history of criticism of “dead hand”

constitutional authority and its possible relationship to interpretive theories in a broader context).

295

JOSEPH WILLIAM SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES 616, 622

(Vicki Been et al. eds., 5th ed. 2010) (in interpreting ambiguous conveyances in the absence of

clear intent, judges prefer constructions that avoid forfeiture by one in current possession).

296

Staszewski, supra note 253, at 19–20. While finding the Michigan state amendment to be

“unambiguous,” even the National Pride at Work, Inc. majority recognized that proponents of

that state’s marriage amendment claimed prior to passage that the amendment would not

preclude the domestic partner healthcare benefits it did preclude. Nat’l Pride at Work, Inc. v.

Governor of Mich., 748 N.W.2d 524, 540 (Mich. 2008).

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2012] THE REACTIONARY ROAD TO FREE LOVE 265

covered civil unions, marriage-like benefits, and even the jurisdiction of

courts.

297

Judges and other state officers should interpret ambiguous

constitutional marriage amendments narrowly in order to limit their effect to

the clear intent of the voters. The experience of Arizona in 2006 and 2008

provided a valuable experiment to demonstrate why. In 2006, Arizona voters

rejected an amendment that prevented domestic partnership recognition and

affected different-sex couples; two years later, they adopted an amendment that

was clearly limited to the issue of same-sex marriage.

298

While these issues

might not resonate the same in other states, the Arizona experiment certainly

demonstrates that not all voters who oppose same-sex marriage would approve

an amendment that clearly prohibits other forms of relationship recognition.

Finally, vague marriage amendments should be read narrowly in order

to minimize conflict with other constitutional provisions. If possible, different

provisions of the same constitution should be read consistently with one

another.

299

Therefore, state marriage amendments should be read consistently

with state constitutional equal protection and due process requirements

whenever possible. If a state constitution requires marriage discrimination

against same-sex couples, a state constitutional equality guarantee could be

served by a second-class institution providing the legal incidents of marriage

only to same-sex couples who may not marry. This logic would parallel

German and Hungarian constitutional court decisions identifying a requirement

to ameliorate constitutionally sanctioned discrimination with guarantees of

substantial legal equality.

300

Additionally, American states would be subject to

federal constitutional review, and their constitutions should also be interpreted

so as to avoid likely conflict with the Equal Protection Clause of the Fourteenth

297

See sources cited infra notes 494–495 and accompanying text (describing the various

topics expressly covered by Georgia’s constitutional amendment while ballot language described

only a vote that “[t]his state shall recognize as marriage only the union of man and woman”).

298

Jen Christensen, Straight Talk Wins in Arizona, THE ADVOC., Dec. 19, 2006, at 34

(attributing the first Arizona vote to a strategy emphasizing the way that amendment would affect

different-sex couples, particularly older couples who chose not to marry in order to maintain full

social security benefits); Pitzl, supra note 258, at B1.

299

See Gilbert v. Richardson, 452 S.E.2d 476, 479 (Ga. 1994) (“It is a basic rule of

construction that a statute or constitutional provision should be construed ‘to make all its parts

harmonize and to give a sensible and intelligent effect to each part[, as i]t is not presumed that

the legislature intended that any part would be without meaning.’”) (alteration in original)

(quoting Houston v. Lowes of Savannah, Inc. 219 S.E.2d 115, 116 (Ga. 1975)); John Devlin,

Louisiana Constitutional Law, 54 L

A. L. REV. 683, 725 (1994) (“[C]onstitutional provisions

should be construed as a whole, harmonizing all elements so as to give effect to each.”) (citing

Succession of Lauga, 624 So. 2d 1156, 1158 (La. 1993)).

300

See sources cited supra notes 231–249 and accompanying text.

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266 WEST VIRGINIA LAW REVIEW [Vol. 115

Amendment if the relevant jurisdiction follows the federal standard of

constitutional avoidance.

301

If a conflict with the Fourteenth Amendment is unavoidable, the anti-

democratic aspect of these specific policy-based state amendments may also

undermine traditional federal judicial deference to state legislative acts and

referenda. That deference is normally justified by the democratic authority

underlying state laws. However, any objection to “activist judges” overriding

the popular will as expressed through their elected representatives is at its

weakest when a court is allied with current popular and legislative majorities in

sweeping away a prior generation’s particular policy restrictions on the current

one.

Given the ambiguity in many of the state marriage amendments

(particularly groups two and three above), a narrow construction of the

amendments would have meaningful consequences, allowing robust forms of

marriage light in almost all states. Yet thirty American constitutional marriage

amendments still expressly prohibit full marriage equality rather than promote

and protect marriage and families in the tradition of their European

counterparts. This leaves these U.S. states with less flexibility to contemplate

full marriage equality, likely channeling their efforts to recognize same-sex

couples into experimentation with marriage light.

301

See LINDA D. JELLUM, MASTERING STATUTORY INTERPRETATION 235–37 (Russell L.

Weaver ed., 2008) (“[I]f serious constitutional doubt is raised, [courts] will first ascertain

whether another construction of the statute is fairly possible so that the constitutional question

can be avoided.”) (emphasis in original); see also Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an otherwise acceptable

construction of a statute would raise serious constitutional problems, the Court will construe the

statute to avoid such problems unless such construction is plainly contrary to the intent of

Congress.”).

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2012] THE REACTIONARY ROAD TO FREE LOVE 267

IV. COMPARING MARRIAGE LIGHT ALTERNATIVES FOR BOTH SAME- AND

DIFFERENT-SEX COUPLES

Public debate about legal recognition of same-sex relationships is a

global phenomenon. Countries in Europe, Latin America and Africa already

recognize same-sex marriages, and Asian countries have been debating the

issue as well.

302

In 1989, Denmark became the first country in the world to introduce a

registered partnership system for same-sex couples.

303

By 2001, the

Netherlands became the first to recognize same-sex marriage.

304

Since then,

Belgium (2003), Spain (2005), Norway (2008), Sweden (2009), Iceland (2010),

302

New Zealand has a broad, gender-neutral civil union law, and there are active marriage

debates going on there and in neighboring Australia. Michelle Cooke, Union and Marriage, It’s

Not Quite Even, S

TUFF.CO.NZ (May 19, 2012, 2:37 PM),

http://www.stuff.co.nz/national/politics/6952190/Union-and-marriage-its-not-quite-even (stating

that 2745 couples have entered civil unions since 2005—twenty percent were heterosexual, a

marriage bill is being drafted, and the leadership of both the labour and conservative parties have

indicated they would not oppose marriage equality); Samantha Maiden, Big Vote for Gay

Marriage, S

UNDAY TEL. (New S. Wales), May 20, 2012, at 25, available at 2012 WLNR

10617718 (a recent poll shows that a majority of Australians favor marriage equality and support

a conscience vote in parliament, while New Zealand’s conservative Prime Minister John Key

“has backed Mr. Obama’s support for gay marriage”). There has been serious discussion about

civil unions and marriage equality in Taiwan for a decade, with leaders of both major parties

supporting some form of recognition, but hesitating to move forward politically before there is

clear societal consensus. See, e.g., Martin Aldrovandi, Same Sex Marriage in Taiwanese

Elections, B

ALLOTS & BULLETS (Jan. 5, 2012), http://nottspolitics.org/2012/01/05/same-sex-

marriage-in-taiwanese-elections/ (describing Democratic Progressive Party’s (DPP) eight-year-

old marriage equality bill and the current pledge of Tsai Ing-wen to support civil unions if elected

president); Chris Hogg, Taiwan Move to Allow Gay Unions, BBC

NEWS,

http://news.bbc.co.uk/2/hi/asia-pacific/3219721.stm (last updated Oct. 28, 2003) (describing the

government’s efforts towards marriage equality and adoption by same-sex couples); Philip

Hwang, Taiwan Presidential Election Candidates Discuss Same-Sex Marriage in Televised

Debate,

FRIDAE (March 17, 2008), http://fridae.asia/newsfeatures/2008/03/17/2025.taiwan-

presidential-election-candidates-discuss-same-sex-marriage-in-televised-debate (quoting both

presidential candidates general support for marriage or an alternative once “societal consensus”

can be established); Lesbian Couple to Take Vows in Nation’s First Public Buddhist Same-Sex

Union, T

AIPEI TIMES (July 8, 2012), http://www.taipeitimes.com/News/taiwan/archives/

2012/07/08/2003537249. Some movement toward legal recognition of same-sex relationships has

also occurred in Hong Kong and Japan. See Nichi Hodgson, Fake Gay Weddings in Tokyo

Disneyland Are Not a Fairytale Come True, T

HE GUARDIAN (May 18, 2012),

http://www.guardian.co.uk/commentisfree/2012/may/18/fake-gay-marriage-japan-not-fairytale

(referring to an “embryonic” campaign for civil partnership by an openly gay Japanese

politician); see also Chris Ip, Gay Partners Given “Relationship Visa” Prolonged Visitor Visa

Effectively Sanctions Same Sex Partners with Aim of Retaining Business Talent, S.

CHINA

MORNING POST, July 10, 2011, at 1, available at 2011 WLNR 13616795.

303

Ian Curry-Sumner, Same-Sex Relationships in Europe: Trends Towards Tolerance?, 3

MSTERDAM L.F. 43, 47 (2011).

304

Id. at 43 (although with some restrictions on adoption).

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268 WEST VIRGINIA LAW REVIEW [Vol. 115

Portugal (2010) and Denmark (2012) have followed suit in Europe, as have

Canada (2005), South Africa (2006), Argentina (2010), Mexico City (2010),

seven U.S. states and the District of Columbia.

305

However, these jurisdictions

do not all treat same-sex marriage exactly the same. To paraphrase George

Orwell, marriage equality is more equal for some than for others.

306

Predictably, legislative debates on hotly contested issues like same-sex

marriage often end in some form of compromise, even when the result is

labeled “marriage.” Some jurisdictions have made religious exemptions to

general discrimination laws with regard to the marriages of same-sex

couples.

307

When some nations recognized same-sex “marriage,” they limited

adoption rights, presumptions of paternity, and even authorization to use

assisted reproductive technology for same-sex spouses.

308

These distinctions

have been eliminated in some jurisdictions as marriage equality gains broader

acceptance.

309

In others, “marriage” still consists of two tiers with less and

more equal forms.

310

305

Dudley Althaus, Gay Marriage Is Legalized in Mexico City Married Gay Couples Are Also

Allowed to Adopt, H

OUS. CHRON., Dec. 22, 2009, at A10, available at 2009 WLNR 25752444;

Copenhagen Orders Church to Marry Homosexuals, V

ANCOUVER SUN, June 8, 2012, at B6,

available at 2012 WLNR 12001492; Dan Fastenberg, A Brief History of International Gay

Marriage, T

IME WORLD (July 22, 2010), http://www.time.com/time/world/

article/0,8599,2005678,00.html. Washington and Maryland have also enacted marriage equality

in 2012, but those acts are subject to possible veto by referendum in November. See sources cited

supra note 195. If things go as planned for France’s new President, François Hollande, that

country will begin recognizing same-sex marriage in 2013. See Gay Marriage, Adoption Allowed

in France from 2013: PM, A

GENCE FR.-PRESSE, July 3, 2012, available at Westlaw 7/3/12

Agence Fr.-Presse 15:46:44.

306

The pigs’ commandment in Orwell’s Animal Farm winds up as “[a]ll animals are equal,

but some animals are more equal than others.” G

EORGE ORWELL, ANIMAL FARM 123 (Signet

Classic ed. 1946).

307

See, e.g., Macarena Sáez, Same-Sex Marriage, Same-Sex Cohabitation, and Same-Sex

Families Around the World: Why “Same” Is So Different, 19 A

M. U. J. GENDER SOC. POL’Y & L.

1, 6–9 (2011) (describing exceptions in favor of religious conscientious objectors in Canada,

Norway, and South Africa); see also N.Y.

DOM. REL. LAW § 10-b (McKinney 2011). Although

this New York “religious exception” regarding discrimination prohibitions is facially neutral, it

was included in the bill extending marriage to same-sex couples as a compromise particularly

related to them. See Danny Hakim & Thomas Kaplan, After Talks with G.O.P., Cuomo Expects

Passage of Gay Marriage Bill, N.Y. T

IMES, June 17, 2011, at A17.

308

Sáez, supra note 307, at 2–14 (describing initial adoption limitations recognized by

Belgium, the Netherlands, and Portugal, as well as parental presumption limitations in Belgium,

the Netherlands, and Spain).

309

Id. at 3–5 (describing the eventual elimination of some limits on adoption and parental

presumption for Dutch same-sex marriages, as well as the elimination of adoption limits, but not

paternity presumptions for Belgian same-sex marriages).

310

Id. Some of these second-class “marriages” could accurately be described as a third form

of “marriage light” (with semi-marriage attributes and the label “marriage”), but it would be

unnecessarily confusing to focus on this distinction for purposes of this paper.

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2012] THE REACTIONARY ROAD TO FREE LOVE 269

The compromise result of the marriage debate is even clearer in the

many states and nations that have devised non-marital forms of relationship

recognition. This includes at least twenty European countries as well as Brazil,

Columbia, Costa Rica, Ecuador, Uruguay, and Venezuela.

311

It also includes

twenty-two U.S. states and the District of Columbia.

312

Some, but not all, marriage light regimes are available to different-sex

couples as well as same-sex partners. Since they have not been around for very

long, it is not entirely clear how these new institutions will affect same and

different-sex relationships, including the decisions of couples who are allowed

to choose between these alternatives and traditional marriage. But it is likely to

have some effect.

Subsection A of this Part examines some of the data already available,

focusing on French and Dutch marriage light models with relatively long,

officially documented histories. These examples show the popularity of

marriage light regimes, particularly those different enough from marriage and

unregistered cohabitation to offer distinct advantages to some couples with a

choice. As Part V will demonstrate, this popularity is likely to lead to

permanent multi-tier systems of relationship recognition for both different and

same-sex couples. Subsection B discusses various American examples of

marriage light, which have attracted some different-sex couples, but less than

their European counterparts. Subsection C briefly discusses the third, and

lightest, option—legal recognition of unregistered cohabitants. This option is

an important variable in assessing the attractiveness of marriage and marriage

light alternatives since it tends to eliminate distinctions regarding legal benefits

and duties, leaving only symbolic differences among marriage, registered

partnerships, and unregistered cohabitation.

A. Marriage Light in Europe

At least twenty countries in Europe have adopted some form of

marriage light. Quasi-marital same-sex registered partnerships with rights and

benefits very similar to marriage have been developed in Denmark, Norway,

Sweden, Greenland, Iceland, the Netherlands, Germany, Finland, Switzerland,

311

Nick Allen, British Lesbian Couple Fight Ecuadorean Law to Become Joint Parents,

AILY TELEGRAPH (U.K.), June 1, 2012, at 25, available at 2012 WLNR 11517862 (describing

2008 Ecuadorean constitution establishing civil unions with same rights as marriage except joint

adoption); Taylor Barnes, Brazil Becomes Largest Nation Yet to Legalize Civil Unions Brazil on

Thursday Became the Sixth Country in Latin America, in addition to Mexico City, to Extend

Rights to Gay and Lesbian Couples But Stopped Short of Legalizing Gay marriage, C

HRISTIAN

SCI. MONITOR, May 2, 2011, available at 2011 WLNR 8943896 (Brazil, Columbia, and Uruguay

recognize quasi-marriage regimes, while Costa Rica and Venezuela recognize less

comprehensive forms of semi-marriage). See also infra notes 313–314 and accompanying text

(listing and describing various forms of marriage light recognized in Europe).

312

See sources cited infra notes 340–342 and accompanying text.

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270 WEST VIRGINIA LAW REVIEW [Vol. 115

the United Kingdom, Hungary, Ireland, and Austria.

313

Registered partnerships

with more limited rights and responsibilities for same-sex couples have been

enacted in France, Belgium, Luxembourg, Andorra, the Czech Republic,

Slovenia, and Liechtenstein.

314

During the debates in many European nations, it became clear that

some different-sex couples also were interested in marriage light. There are

numerous reasons for this, ranging from attractive substantive distinctions—

like easier termination of the relationship—to the undesired religious and

paternalistic baggage of marriage. Responding to this interest, some countries

agreed to open marriage light to different-sex couples. The Netherlands

invented a form of gender-neutral registered partnership very similar to

marriage in 1997.

315

Later, France, Belgium, Luxembourg, and Andorra

enacted new forms of civil partnership, open to couples regardless of gender,

but with rights and responsibilities that were more distinctive from marriage.

316

Certainly the most famous of these has been the French pacte civil de solidarité

(civil solidarity pact) or “PACS.”

317

313

Curry-Sumner, supra note 303, at 48, 51. Waaldijk, Chair in comparative sexual

orientation law at the University of Leiden, the Netherlands, coined the phrase “quasi-marriage”

to describe these forms of registered partnership which have successfully replicated most legal

aspects of civil marriage. See K

EES WAALDIJK, MORE OR LESS TOGETHER: LEVELS OF LEGAL

CONSEQUENCES OF MARRIAGE, COHABITATION AND REGISTERED PARTNERSHIP FOR DIFFERENT-

EX AND SAME-SEX PARTNERS 42 (Kees Waaldijk ed., 2004), available at

https://openaccess.leidenuniv.nl/bitstream/handle/1887/12585/More-or-less-together00-

Complete%20report.pdf?sequence=2. Waalkijk has done extensive work in compiling and

systematically analyzing the comparative characteristics of marriage light options in Europe and

beyond.

314

WAALDIJK, supra note 313, at 38–39; Curry-Sumner, supra note 303, at 49–52; Wojtek

Radwanski, Liechtenstein “Yes” Vote for Civil Partnerships, Y

AHOO! NEWS (June 20, 2011),

http://ph.news.yahoo.com/liechtenstein-yes-vote-civil-partnerships-220243116.html (describing

the sixty-eight percent referendum vote in favor of Liechtenstein’s new civil partnership law);

see also Dr. Aurelia Frick, Fragen und Antworten Betreffend das Partnerschaftsgesetz zur

Volksabstimmung am 17./19. Juni 2011 [Questions and Answers Regarding the Partnership Act

to Referendum on 17th/19th June 2011], R

EGIERUNG DES FÜRSTENTUMS LIECHTENSTEIN,

http://regiergung.li/index.php?id=377 (last visited Oct. 14, 2012) (Liechtenstein government

answers to questions about the new law, including clarification that it cannot be used by

different-sex couples). In addition to these countries, Croatia provides rights to unregistered

same-sex couples. See Curry-Sumner, supra note 303, at 52.

315

Curry-Sumner, supra note 303 at 46–49. The primary distinction was a restriction on

adoption. Same-Sex Dutch Couples Gain Marriage and Adoption Rights, N.Y.

TIMES, Dec. 20,

2000, at A8.

316

Curry-Sumner, supra note 303, at 49–51.

317

PACS provide some, but not all of the benefits and duties of marriage. The benefits include

inheritance and gift tax exemptions, income tax benefits, social security benefits, eased residency

permits for foreign partners, certain employment benefits, and residential lease protection upon

the death of a partner. Significantly, PACS are much easier to terminate than French marriages.

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2012] THE REACTIONARY ROAD TO FREE LOVE 271

English language scholarly and popular publications have rightfully

taken notice of the fascinating trends regarding marriage and PACS in

France.

318

To the surprise of many, PACS are au courant. Established in 1999,

PACS were instantly popular with different-sex couples. In 2000, seventy-five

percent of PACS were registered by different-sex couples, and their popularity

has grown tremendously, so that ninety-five percent of PACS involved a man

and a woman by 2009.

319

This does not mean that same-sex couples ignored the

PACS option. Their PACSing increased by fifty percent between 2001 and

2007.

320

But the number of different-sex PACS per year increased ten times

faster.

321

By 2009, there were 175,000 couples registering PACS in France,

approximately two PACS for every three new marriages.

322

During the same

period, the number of marriages in France decreased by around eleven

percent.

323

Combining PACS and marriage, however, there has been an

increase in total legal recognition of French relationships by more than forty

percent.

324

These statistics suggest that PACS serve two purposes for different-

318

See, e.g., Christina Davis, Domestic Partnerships: What the United States Should Learn

From France’s Experience, 24 P

ENN ST. INT’L L. REV. 683, 684 (2006) (arguing that different-

sex marriage light should not be allowed because it “degrade[s] the institution of marriage and

hurt[s] society at large”); Marriage and the State, supra note 101 (finding a “pink ray of hope” in

the popularity of U.K. same-sex civil partnerships and suggesting that opening them up to

different-sex couples might rejuvenate marriage by secularizing it as the French did with PACS);

Edward Cody, Straight Couples in France Are Choosing Civil Unions Meant for Gays, W

ASH.

POST, Feb. 14, 2009, at A13 (describing the reasons underlying the popularity of French PACS

among different-sex couples); Scott Sayare & Maïa de la Baume, Bliss for Many French Couples

Is Now Less Marital Than Civil, N.Y.

TIMES, Dec. 16, 2010, at A1 (describing the popularity of

French PACS among different-sex couples); Straights Wed the Gay Way, B

RISBANE NEWS

(Austl.), May 18, 2010, at 9, available at 2010 WLNR 10219963.

319

Sayare & Baume, supra note 318, at A1.

320

La population de la France en 2007 [The Population of France in 2007], LA FRANCE EN

CHINE, http://www.ambafrance-cn.org/imprimer.html?id_article=4739&lang=fr&cs (last updated

June 5, 2008) [hereinafter France en 2007].

321

Id. (the number of different-sex couples entering PACS increased from 15,426 to 97,000

between 2001 and 2007).

322

Anne Pia & Catherine Beaumel, Bilan Démographique 2009: Deux Pacs pour Trois

Marriages [Two to Three Marriages PACS], I

NSTITUT NATIONAL DE LA STATISTIQUE ET DES

ÉTUDES ÉCONOMIQUES [NAT’L INST. OF STATISTICS & ECON. STUDIES] (Fr.),

http://www.insee.fr/fr/themes/document.asp?ref_id=ip1276 (last visited Oct. 14, 2012).

323

Compare Id. (in 2009, there were 256,000 marriages in France), with France en 2007,

supra note 320 (in 2001, there were 288,000 marriages in France).

324

Compare France en 2007, supra note 320 (in 2001, there were 288,000 marriages and

19,632 PACS for a total of 307,632), with Pia & Beaumel, supra note 322 (in 2009, there were

256,000 marriages and 175,000 PACS for a total of 431,000).

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272 WEST VIRGINIA LAW REVIEW [Vol. 115

sex couples: In some cases, they are a substitute for marriage; in others, they

provide recognition for couples who would not have married.

325

A number of reasons have been cited for the tremendous growth in

popularity of PACS in comparison to marriage. Couples are anxious to receive

some of the benefits of marriage such as inheritance and gift tax exemptions,

income tax benefits, social security benefits, eased residency permits for

foreign partners, certain employment benefits, and residential lease protection

upon the death of a partner.

326

However, they do not all want to be strapped

with the possible disadvantages of marriages, particularly difficult and

expensive divorce procedures.

327

Some couples want to avoid the message communicated by marriage,

which they view as a “‘heavy and invasive’ institution” with “a side that’s very

institutional and very square and religious.”

328

They see the PACS as an end in

itself, the ideal form of state recognition for their relationship. Other couples

view a PACS as a lower-risk trial run before marriage. As one French woman

explained soon after registering a PACS with her male partner, “To me, it

doesn’t replace marriage. I’d still like to get married one day.”

329

With their popularity now rivaling marriage, French PACS have caught

on more than marriage light regimes in other countries. However, marriage

light is gaining popularity in other places as well. For example, the number of

registered partnerships in the Netherlands rose almost five-fold between 2001

and 2010.

330

Different-sex couples registered almost ninety-four percent of the

325

At least one prominent English publication found a “pink ray of hope” in the popularity of

U.K. same-sex civil partnerships, suggesting that, if they were made available to different-sex

couples, they might rejuvenate marriage by secularizing it as the French did with PACS.

Marriage and the State, supra note 101, at 28. Murray has described the desire of some people to

avoid the thickly regulated and socially coercive force of marriage. Murray, supra note 60, at 63–

64. Perhaps, PACS and other marriage light regimes fill some of this demand.

326

Davis, supra note 318, at 691; Phil Cain, Austrians Seek Right to Partnership Created for

Gays, BBC

NEWS, http://news.bbc.co.uk/2/hi/europe/8687064.stm (last visited Oct. 23, 2012)

(quoting Delphine Rorive’s explanation that she and her male partner “just wanted to pay less

taxes”); Sayare & Baume, supra note 318, at A1.

327

Cody, supra note 318, at A13.

328

Sayare & de la Baume, supra note 318, at A1 (quoting Wilfried Rault, a sociologist with

the French National Institute for Demographic Studies, and Sophie Lazzaro, a French woman

who registered a PACS with her different-sex partner, respectively).

329

Cain, supra note 326. This particular French couple did everything half-way, with a fancy

party for friends, but no family, and the top halves of formal wedding outfits, but casual attire

from the waist down. Id.

330

Number of Registered Partnerships Grew Further in 2010, STATISTICS NETH. WEB MAG.

(March 15, 2011), http://www.cbs.nl/en-

GB/menu/themas/bevolking/publicaties/artikelen/archief/2011/2011-3331-wm.htm [hereinafter .

STATISTICS NETH. 2010].

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2012] THE REACTIONARY ROAD TO FREE LOVE 273

registered partnerships there in 2009.

331

As in France, this is roughly in line

with the heterosexual ratio in the population.

332

On the other hand, same-sex

couples may now marry in the Netherlands, and they do so two to three times

as frequently as they enter registered partnerships.

333

The total number of

registered partnerships in comparison to marriages is much smaller in the

Netherlands than in France, but it is still significant with more than one

partnership registered for every eight new marriages in 2009.

334

There are several possible reasons why PACS are more popular in

France than registered partnerships in the Netherlands. First, PACS offer a

much greater contrast to marriage than registered partnerships in the

Netherlands, where the main contrast is symbolic since the benefits and duties

are the same as those of marriage. Second, the Netherlands has evolved to

allow marriage for same-sex couples, nullifying any motivation for different-

sex couples to choose the nondiscriminatory partnership option out of solidarity

with lesbian and gay friends and family. Third, unregistered and unmarried

cohabitating couples in the Netherlands are recognized by the state for more

purposes than their counterparts in France, providing an even more distinctive

alternative to marriage than registered partnerships.

335

Finally, there may be a

particularly bad fit between the social expectations of different-sex couples in

France and the traditional institution of marriage.

336

331

Kees Waaldijk, Sexual Orientation Law, UNIV. LEIDEN,

http://www.law.leiden.edu/organisation/meijers/research-projects/samesexlaw.html (last updated

Oct. 3, 2011). While the numbers for 2001 through 2009 may have been distorted by different-

sex couples converting their marriages into registered partnerships in order to dissolve them more

cheaply and easily, that option ended in 2009 without causing a substantial dip in the 2010 figure.

TATISTICS NETH. 2010, supra note 330.

332

GATES, LGBT, supra note 184, at 1 (estimating that approximately 3.5% of the U.S. adult

population was lesbian, gay or bisexual); Theo G.M. Sandfort, Floor Bakker, François G.

Schellevis & Ine Vanwesenbeeck, Sexual Orientation and Mental and Physical Health Status:

Findings From a Dutch Population Survey, 96 A

M. J. PUB. HEALTH 1119, 1121 tbl. 1 (June 2006)

(describing the self-reported sexual orientation of respondents to a Dutch National Survey as

ninety-seven to ninety-eight percent heterosexual).

333

Marriages and Partnership Registrations; Key Figure, CENTRAL BUREAU OF STATISTICS

(Neth.) http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLEN&PA=37772eng&D1=0-

28,35-39&D2=(l-11)-l&HD=110207-0636&LA=EN (last updated Aug. 13, 2012) (table showing

that 1358 same-sex couples married in 2009 while 495 registered their partnerships instead)

[hereinafter Neth. CBS]. Same-sex domestic partnerships dropped by two-thirds in 2001 when

marriage became equally available. See Waaldijk, supra note 15.

334

Compare Neth. CBS, supra note 333 (table showing 73,477 marriages and 9497 registered

partnerships in the Netherlands in 2009), with France en 2007, supra note 320 (indicating that

there were 256,000 marriages and 175,000 PACS in France in 2009).

335

See infra Part IV.C.

336

At least among the French elite and media, there is a strong enough sense of sexual-

familial laissez faire that President François Mitterrand was able to maintain a secondary

family—a longtime mistress and her daughter—without great exposure or outcry. Cody, supra

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274 WEST VIRGINIA LAW REVIEW [Vol. 115

The French and Dutch examples show that some different-sex couples

are attracted to marriage light and that the attraction may be stronger the more

the new institution differs from traditional marriage and unregistered

cohabitation, offering a real choice with significant advantages for some.

337

described below, different-sex marriage light has not caught on in the United

States to the same extent, but there are good reasons to believe it may.

B. U.S. State Experiments with Marriage Light

Since Berkeley and West Hollywood, California, became the first two

U.S. cities to recognize domestic partnerships in the mid-1980s, dozens of

states, counties and municipalities have followed their lead.

338

Today, there are

substantial statewide laws recognizing same-sex marriage and/or marriage light

in almost half of the United States.

339

The District of Columbia and at least seventeen states, including seven

with constitutional marriage amendments, currently recognize marriage light on

note 318, at A13. Current President François Hollande and his partner, Valerie Treirweiler, are

the first unmarried couple to share the Elysee Palace. See Maia de la Baume, First Lady Without

a Portfolio (Or a Ring) Seeks Her Own Path, N.Y.

TIMES, May 16, 2012, at A6. Then again,

German President, Joachim Gauck and his long-time partner moved into Schloss Bellevue

several weeks earlier. Id.

337

Scott Sayare & Maïa de la Baume, In France, Civil Unions Gain Favor Over Marriage,

N.Y.

TIMES, Dec. 16, 2010, at A1.

338

City Extends Benefits to Unwed Partners, BOSTON GLOBE, Dec. 6, 1984, at 12 (describing

the 8-0 vote of Berkeley’s city council to create the nation’s first domestic partnership ordinance,

which covered both same and different-sex partners); W. Hollywood to Recognize Non-Married

Partnerships, L.A.

TIMES, Feb. 23, 1985, at 1 (describing the 1985 passage of West Hollywood’s

ordinance allowing both same and different-sex couples to register their domestic partnerships in

that city). San Francisco’s city council passed what would have been the first domestic

partnership ordinance in 1982 by a vote of 8-3, but then-mayor Dianne Feinstein vetoed it. See

Wallace Turner, Couple Law Asked for San Francisco, N.Y.

TIMES, Nov. 28, 1982, at 131;

Wallace Turner, Partnership Law Vetoed on Coast, N.Y.

TIMES, Dec. 10, 1982, at A17. Domestic

partner benefits quickly spread far beyond the costs. See, e.g., Barbara J. Cox, “The Little

Project”: From Alternative Families to Domestic Partnerships to Same-Sex Marriage, 15 W

IS.

WOMEN’S L.J. 77, 78 (2000) (describing Madison, Wisconsin’s trailblazing domestic partnership

ordinance, as well as related history in other localities). Today there are municipal and county

domestic partnership ordinances in locations ranging from Salt Lake City, Utah and El Paso,

Texas, to Duluth, Minnesota and Athens-Clarke County, Georgia. See Cities and Counties in the

United States Offering a Domestic Partnership Registry, W

IKIPEDIA,

http://en.wikipedia.org/wiki/Cities_and_counties_in_the_United_States_offering_a_domestic_pa

rtnership_registry (last updated Aug. 30, 2012).

339

Status of Same-Sex Relationships Nationwide, LAMBDA LEGAL,

http://www.lambdalegal.org/publications/nationwide-status-same-sex-relationships (last updated

June 8, 2012).

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2012] THE REACTIONARY ROAD TO FREE LOVE 275

a statewide basis.

340

Nine states and D.C. recognize quasi-marriage civil unions

or domestic partnerships, offering all or almost all of the state benefits and

duties of marriage.

341

At least eleven states recognize some lesser form of semi-

marriage for domestic partners, designated beneficiaries, or reciprocal

beneficiaries.

342

These American marriage light regimes developed as a compromise in

the same-sex marriage debate. Thus, many states created marriage light regimes

open only to same-sex couples as a consolation prize for refusing to recognize

marriage equality.

343

However, like in Europe, the recent American trend is to

open marriage light to different-sex couples as well, even within quasi-

marriage regimes that include all the state rights and responsibilities of

marriage.

344

Since 2009, Colorado, Nevada, Illinois, Hawaii, and Wisconsin

340

This includes the states that currently recognize quasi- and semi-marriage institutions, as

listed below. Note that New Jersey and Hawaii each recognize both civil unions and some less-

comprehensive semi-marriage regime.

341

California, Delaware, the District of Columbia, Hawaii, Illinois, Nevada, New Jersey,

Oregon, Rhode Island, and Washington. B

ADGETT & HERMAN, supra note 197, at 3.

(Connecticut, New Hampshire, and Vermont also recognized quasi-marriage institutions, prior to

phasing them out upon adoption of statewide marriage equality). See, e.g., 2003 Cal. Legis. Serv.

13, available at http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab_0201-

0250/ab_205_bill_20030922_chaptered.pdf (“This act shall be construed liberally in order to

secure to eligible couples who register as domestic partners the full range of legal rights,

protection and benefits, as well as all of the responsibilities, obligations, and duties to each other,

to their children, to third parties and to the state, as the laws of California extend to and impose

upon spouses.”).

342

Colorado, Hawaii, Maine, Maryland, New Jersey, Vermont and Wisconsin, offer varying

degrees of general state recognition for non-married couples. See Badgett & Herman, supra note

197, at 3. Arizona, Montana, New Mexico and New York also recognize unregistered domestic

partnerships for specific limited purposes under state law. See, e.g., Diaz v. Brewer, 656 F.3d

1008 (9th Cir. 2011) (upholding preliminary injunction against Arizona and requiring it to

continue providing benefits to the same-sex domestic partners of employees in that state); Steve

Terrell, Capital Shake-Up Domestic-Partner Benefits at Risk?, S

ANTA FE NEW MEXICAN, Jan. 5,

2011, at A10 (describing New Mexico’s executive order providing benefits to the domestic

partners of state employees); Arthur S. Leonard, New York State’s First Domestic Partnership

Law, L

EONARD LINK (Feb. 8, 2006),

http://newyorklawschool.typepad.com/leonardlink/2006/02/new_york_states.html (describing

2006 law according domestic partners equal status with married couples regarding disposition of

remains when one partner dies); Medical Benefits, M

ONT.’S OFFICIAL STATE WEBSITE,

http://benefits.mt.gov/medical.mcpx (last visited Sept. 9, 2012) (offered to domestic partners of

state employees).

343

See, e.g., S.B. 30, 146th Gen. Assem., 1st Reg. Sess. (Del. 2011).

344

See, e.g., California, Colorado, the District of Columbia, Hawaii, Illinois, Maine,

Maryland, Nevada, New Jersey, New Mexico, New York, Vermont, and Washington. See Civil

Unions & Domestic Partnership Statutes, N

AT’L CONF. OF STATE LEGISLATURES,

http://www.ncsl.org/issues-research/human-services/civil-unions-and-domestic-partnership-

statutes.aspx (last updated Feb. 2012) (overview of some states with gender-neutral civil unions

and domestic partnerships registries).

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276 WEST VIRGINIA LAW REVIEW [Vol. 115

have all enacted gender neutral marriage light regimes.

345

Only Delaware and

Rhode Island have adopted new laws excluding different-sex couples during

the same period.

346

Today, different-sex couples in D.C., Hawaii, Illinois, and Nevada can

choose between marriage and a quasi-marriage civil union or domestic

partnership.

347

These alternatives may be attractive for symbolic reasons, but

they may also offer substantive advantages such as federal law invisibility.

Regardless of state law, the federal government is not likely to recognize even

the most marriage-like civil unions for most purposes.

348

In fact, DOMA

prohibits federal recognition of different-sex couples, who are not defined as a

“husband” and “wife” under state law.

349

California, New Jersey, and

Washington noted just this point when they made exceptions to their general

same-sex requirement to register different-sex domestic partners, where

partners were over sixty-two years old.

350

These states were looking to

maximize federal benefits, such as social security, for their heterosexual

345

BADGETT & HERMAN, supra note 197, at 34 (listing California, Colorado, the District of

Columbia, Hawaii, Illinois, Maine, Maryland, Nevada, New Hampshire and Washington as states

recognizing forms of different-sex marriage light); id. at 16 (explaining that the California,

Washington and New Jersey versions are available only to different-sex couples with one or

more partner over sixty-two); see also A.B. 75, 99th Leg., 10th Reg. Sess. (Wis. 2009), §§ 774–

776, available at http://docs.legis.wisconsin.gov/2009/related/acts/28.pdf, at 186 (establishing a

gender-neutral limited form of domestic partnership in Wisconsin).

346

See DEL. CODE ANN. Tit. 13, § 202(3) (West 2012) (limiting civil unions to same-sex

couples); R.I. G

EN. LAWS § 15-3.1-2 (West 2011).

347

D.C. CODE § 37-702 (2010); NEV. REV. STAT. ANN. §122A.100(2) (West 2010); 4 Hawaii

Couples Reading for Civil Union Ceremony,

B97HAWAII.COM, http://www.b97hawaii.com/4-

Hawaii-couples-readying-for-civil-union-ceremony/11835879 (last visited Oct. 14, 2012); Kevin

McDermott and Doug Moore, Illinois Offers Civil Unions as of Wednesday: Most of the Same

Rights as Marriage will Apply; Opposite Sex Couples also Can Get the License and its Benefits,

T. LOUIS POST-DISPATCH, May 28, 2011, at A1.

348

Thousands of federal laws hinge on the terms “spouse” and “marriage.” Gill v. Office of

Pers. Mgmt., 699 F. Supp. 2d 374, 379 (D. Mass. 2010) (DOMA implicated 1,138 laws by 2004).

An exception to this general federal invisibility could be different-sex state unions expressly

defined in terms like “spouse,” “husband,” and “wife.” See sources cited infra notes 429–431 and

accompanying text. Of course, this distinction is largely irrelevant for same-sex couples as long

as the Defense of Marriage Act (DOMA), prohibits the federal recognition of even same-sex

marriages. Defense of Marriage Act, Pub. L. No. 104-199, §§ 1–3, 110 Stat. 2419 (1996)

(codified at 1 U.S.C. § 7 (2006) and 28 U.S.C. §1101(a)(35) (2006)).

349

See sources cited infra notes 427–433 and accompanying text.

350

New Jersey and Washington legislatures maintained these forms of domestic partnerships

when generally phasing out this category in favor of more comprehensive quasi-marriage civil

unions and marriage, respectively, for same-sex couples. N.J.

STAT. ANN. § 26:8A-4.1 (West

2007); S.B. 6239, 62d Leg., Reg. Sess. (Wash. 2012).

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2012] THE REACTIONARY ROAD TO FREE LOVE 277

residents.

351

Federal invisibility allows couples to enjoy state benefits, such as

tax free inheritance, while avoiding federal marriage related tax disadvantages

or social security benefit reductions.

352

Possibly the most open and innovative new form of marriage light is

Colorado’s contract-based “designated beneficiary” regime.

353

Not only is it

gender neutral, but it also rejects the normal one-size-fits-all approach of

marriage and most types of marriage light, allowing beneficiaries to customize

their legal relationships by selecting from a menu of options regarding issues

like joint property ownership, hospital visitation, medical decision-making,

intestate inheritance, and standing in a wrongful death suit.

354

Unlike most

forms of marriage light, this Colorado experiment does not require that the

designated beneficiaries cohabitate or that they be a sexual couple. Thus pairs

such as aunts and nephews, brothers and sisters, or best friends can also elect

coverage under this Colorado law.

355

Two states have developed options specifically aimed at non-sexual

pairs who live together and depend on one another. While experimenting with

non-marital institutions for same-sex couples, Hawaiian and Vermont

lawmakers invented new forms of “reciprocal beneficiary” status providing

limited recognition for non-couples as well. In Hawaii, reciprocal beneficiary

status was designed for both same-sex couples and these other pairs who could

not marry.

356

Vermont devised quasi-marriage civil unions for same-sex

couples and reciprocal beneficiary recognition for pairs who could neither

marry nor form a civil union due to consanguinity.

357

351

See, e.g., CAL. FAM. CODE § 297 (West 2005) (specifically defining different-sex couple

eligibility for California domestic partnership status in terms of social security eligibility

criteria). This was meant “expressly to benefit those eligible for benefits under the Social

Security Act.” Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 994 (D. Cal. 2010).

352

See infra Part V. (listing other ways that federal invisibility makes marriage light attractive

to different-sex couples).

353

COLO. REV. STAT. ANN. §§ 15-22-104 to 112 (West 2009).

354

Id.; see also David D. Meyer, Fragmentation and Consolidation in the Law of Marriage

and Same-Sex Relationships, 58 A

M. J. COMP. L. 115, 121–22 (2010) (describing the unique

attributes of this arrangement before arguing that it was merely the “high-water mark” of a

movement toward fragmentation that will soon fade away into a return to unitary marriage);

Polikoff, Equality and Justice, supra note 123, at 556 (describing the ability to individually select

among various legal consequences on Colorado’s designated beneficiary form).

355

Sara Gandy, Beneficiaries Bill Would Give Rights to Unmarried, 9NEWS.COM (Feb. 16,

2009, 11:02 AM), www.9news.com/rss/story.aspx?storyid=110022.

356

See HAW. REV. STAT. § 572C-4 (West 1997).

357

In fact, no pair has ever registered as reciprocal beneficiaries in Vermont. Telephone

interview with Cindy Hooley, Vital Statistics Manager, Vt. Health Dep’t [hereinafter Hooley

Interview]. This may suggest a limit on the attraction of ultra-light alternatives, or—more

likely—the lack of knowledge of the institution among Vermont’s citizens.

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278 WEST VIRGINIA LAW REVIEW [Vol. 115

So far, the new marriage light options have not been as popular with

different-sex couples in the United States as in Europe.

358

For instance,

different-sex couples comprised less than eight percent of civil union licenses

issued by Cook County, Illinois, during the first six months of availability.

359

Different-sex couples likely constitute forty-five percent of Nevada’s early

domestic partner registrations.

360

Their share of D.C. domestic partnerships has

grown in popularity from eight percent in 2002 to fifty-one percent in 2010, but

the total numbers are still relatively small.

361

It is impossible to know how

many different-sex couples have registered under marriage light regimes in

other U.S. states that do not ask about gender when they process domestic

partnership and reciprocal beneficiary applications.

362

Although the numbers are smaller, American different-sex couples,

who choose marriage light appear to do so for similar reasons as their PACSing

French contemporaries: as a political statement of solidarity with same-sex

couples, as a way to obtain the optimal package of benefits and responsibilities

for that particular couple, and as a religious statement.

363

Also, like the French,

there seems to be a split among those different sex couples viewing a civil

358

See BADGETT & HERMAN, supra note 197, at 16–18 (describing the one to eight percent

choice of domestic partnerships over marriage and contending that this lack of popularity of

marriage light for different-sex couples indicated a clear preference for marriage, while

recognizing that the relatively recent nature of marriage light recognition may also play a role).

359

DAVID ORR, COOK CNTY CLERK, OPPOSITE-SEX CIVIL UNIONS: MOTIVES FOR NOT

MARRYING, 1 n.2, available at http://www.cookcountyclerk.com/newsroom/

newsfromclerk/Documents/Opposite%20Sex%20Civil%20Union%20Report%20Final%2012.19.

11.pdf (stating that 138 of the 1,856 civil unions licensed from June to November, 2011, were for

different-sex unions) (last visited Oct. 14, 2012).

360

BADGETT & HERMAN, supra note 197, at 28.

361

Excel Chart provided by Willis R. Bradwell, Jr., Registrar, Vital Records Division, Center

for Policy, Planning and Evaluation, District of Columbia (on file with author). In 2002,

different-sex couples comprised only eleven of the one-hundred-forty-six domestic partnerships

in D.C. at the end of that year. During 2010, different-sex couples comprised 105 of the 207 new

domestic partnerships registered in D.C. (not counting the eight relationships terminated that

year, for which no gender is recorded). This was the same number of different-sex domestic

partnerships as in 2008, but the number of total partnerships decreased by almost one-third in

2010, possibly because of the rapidly changing law for same-sex couples, including recognition

in D.C. of out-of-state same-sex marriages in 2009 and anticipation of full marriage equality in

D.C., which occurred in 2011.

362

E.g., Vermont (Hooley Interview, supra note 357), Maine, (telephone interview with Heidi

Lincoln, Marriage Coordinator, with the Maine CDC Vital Records Office (Oct. 9, 2012)), and

California (telephone interview with Jonnie, California Secretary of State, Special Filings,

Domestic Partnership Section.).

363

ORR, supra note 359, at 2–3 (describing the answers to an open-ended question about why

each different-sex couple chose a civil union over marriage, including political/ideological

factors and benefits most prominently); see supra notes 328–329 and accompanying text

(describing similar European attitudes).

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2012] THE REACTIONARY ROAD TO FREE LOVE 279

union as their final goal and those who see it as a step toward possible

marriage.

364

The relative lack of popularity of different-sex marriage light in the

U.S. in comparison to Europe could stem from lack of information or

motivation. Most of the gender-neutral forms for registering marriage light in

the U.S. are quasi-marriage unions identical to marriage for state purposes.

365

They are also invisible for important federal purposes ranging from

immigration to federal income tax. Americans are also more likely to be

actively religious and, perhaps, less offended by the tradition-laden message of

marriage.

366

The American ease of divorce and the prevalence of prenuptial

agreements—trends bemoaned by marriage traditionalists—may also be

reducing the desire for alternatives; in Austria, by contrast, divorces can take up

to six years.

367

In essence, standard American marriage and relatively liberal

divorce laws may be more akin to marriage light rules in some European

countries. Finally, Americans tend to be more mobile and, thus, the interstate

recognition of relationships afforded by marriage may be more important in the

U.S.

368

Although marriage light may remain less attractive to different-sex

couples in the U.S. than in France, there is reason to doubt that American

heterosexuals are entirely impervious to its attractions. One need only look as

far as the more established practice of private, employment related domestic

partner benefits. Over nine thousand U.S. employers, including eighty-three

percent of Fortune 100 companies, offer benefits to the domestic partners of

their employees.

369

The majority of these companies offer benefits to both

364

ORR, supra note 359, at 1 (showing a significant gender gap in the responses to this

question, with sixty-five percent of women, but only thirty-eight percent of men, planning to

marry someday).

365

Compare supra text accompanying note 341, with supra text accompanying note 345 (of

the ten gender-neutral marriage light jurisdictions, seven are quasi-marriage regimes).

366

Pew Research Center, The American-Western European Values Gap, PEWGLOBAL.ORG

(Nov. 17, 2011), http://www.pewglobal.org/2011/11/17/the-american-western-european-values-

gap/?src=prc-headline8-11 (last updated Feb. 29, 2012) (describing polls indicating that half of

Americans, but only thirteen to twenty-two percent of French, British, Germans, and Spanish

deem religion very important in their lives).

367

Cain, supra note 326.

368

EUROPEAN FOUNDATION FOR THE IMPROVEMENT OF LIVING AND WORKING CONDITIONS,

LABOUR MOBILITY IN A TRANSATLANTIC PERSPECTIVE 2 (Oct. 30–31, 2007), available at

http://www.eurofound.europa.eu/pubdocs/2008/26/en/1/ef0826en.pdf (comparing 2.8–3.4%

annual interstate-migration of American working-age individuals to 0.1% among fifteen EU

countries and only 1% within those countries).

369

See EMPLOYEE BENEFIT RESEARCH INSTITUTE, DOMESTIC PARTNER BENEFITS: FACTS AND

BACKGROUND 1 (Feb. 2009), available at http://www.ebri.org/pdf/publications/facts/0209fact.pdf

(showing 9374 employers offered domestic partner benefits as of May 16, 2008); Domestic

Partner Benefits, H

UMAN RIGHTS CAMPAIGN, http://preview.hrc.org/issues/health/

domestic_partner_benefits.htm (last visited Oct. 17, 2012) (eighty-three percent of the Fortune

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280 WEST VIRGINIA LAW REVIEW [Vol. 115

different-sex and same-sex couples.

370

In this context, different-sex couples

comprise the majority of employees using domestic partnership benefits.

371

And

recognition is attractive to these couples at a very substantial cost: Unlike

spousal benefits, domestic partnership benefits are taxed as additional income

to the employee.

372

C. The Lightest Option—Cohabitation Without Registration

In addition to registered forms of marriage light, states and foreign

nations have begun recognizing unregistered, cohabiting couples for legal

purposes. This variable clearly plays a role in the comparative market positions

of marriage and marriage light, where available.

Since the 1970’s, cohabitation by unmarried couples in the U.S. has

increased more than tenfold.

373

Some legal developments during this time have

eased the lives of cohabiting couples and their children and lead to their

recognition for limited purposes. Criminal laws prohibiting unmarried

cohabitation have been repealed.

374

Most states have also followed the

precedent of the celebrated 1976 California “palimony” case Marvin v. Marvin,

honoring express and implied contracts between unmarried cohabiting couples

100, fifty-eight percent of the Fortune 500, and forty percent of the Fortune 1000 had domestic

partnership policies in place in 2011); see also Domestic Partnership Benefits and Obligations

Legislation for Federal Employees Would End Disparities, Help Attract and Retain Top Talent,

TATES NEWS SERV., Nov. 18, 2011 (describing the increase in companies, states, and

municipalities recognizing domestic partner benefits, including an increase from twenty-five

percent to sixty percent of Fortune 500 companies between 2000 and 2011).

370

Domestic Partner Benefit Eligibility: Defining Domestic Partners and Dependents, HUMAN

RIGHTS CAMPAIGN, http://www.hrc.org/resources/entry/domestic-partner-benefit-eligibility-

defining-domestic-partners-and-depende (last visited Sept. 5, 2012) (citing a 2005 Hewitt study

showing that fifty-eight percent of employers offering partner benefits include both same- and

different-sex couples).

371

See Zachary Bromer, Domestic Partner Benefits, from Marginal to Mainstream,

ALARY.COM, http://www.salary.com/domestic-partner-benefits (last visited Sept. 5, 2012)

(quoting a 1994 study by Hewitt Associates, which found that sixty-seven percent of domestic

partners covered were in different-sex couples).

372

Liz Pulliam Weston, Your Benefits: Health Plans for Domestic Partner Can Add to Tax

Bill, L.A.

TIMES, Sept. 24, 2000, at 1, available at 2000 WLNR 8426483.

373

Jason M. Merrill, Note, Two Steps Behind: The Law’s Struggle to Keep Pace with the

Changing Dynamics of the Amercian Family, 11 J.L.

& FAM. STUD. 509, 510 (2009) (citing an

increase in different-sex, unmarried cohabitation from 450,000 to over 4.6 million between the

late 1970’s and 2009).

374

Margaret M. Mahoney, Forces Shaping the Law of Cohabitation for Opposite-Sex Couples,

7 J.L.

& FAM. STUD. 135, 141–51 (2005) (tracing the repeals in most states to the ALI’s 1962

Model Penal Code, and questioning the continued constitutionality of the remaining statutes after

the Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003)).

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2012] THE REACTIONARY ROAD TO FREE LOVE 281

without recognizing any general status for these partnerships.

375

State and

federal domestic violence laws tend to cover unmarried partners, at least when

they are not gay.

376

A few states have recognized a cause of action for a

partner’s loss of consortium due to a third party’s negligent conduct.

377

Others

have recognized entry into a new, non-marital relationship as a basis for

terminating a prior spouse’s duty to pay alimony.

378

In probably the most

sensitive area, some states have recognized the possibility of de facto or

psychological parenthood, where a legal parent holds out her cohabiting partner

as the co-parent of a child over time.

379

The compelling factual cases that first

drew judicial recognition of these relationships were often those of lesbian and

gay families, which had no choice to marry, but the resulting rules have

benefitted different-sex couples as well. This demonstrates how the exclusion

of same-sex couples from marriage can undermine the monopoly of marriage

on certain legal consequences and the resulting normative effect even without

any form of state-recognized marriage light status.

While there has been some piecemeal recognition of cohabiting

couples in some states, there is still no broad categorical family status

recognition for these couples in the U.S.

380

In 2001, the American Law Institute

proposed recognition of unmarried cohabitation as a family status, but that

proposed reform has not yet been adopted by any state.

381

However, some

European nations do recognize a categorical status for cohabiting couples and

attach significant legal consequences to that status. For instance, many

Scandinavian countries and the Netherlands treat marriage and unregistered

375

Id. at 159; Elizabeth A. Pope, Cohabitation: What to Do When Couples Cannot or Do Not

Marry, 20 D

UPAGE CNTY BAR ASS’N BRIEF 22, 24–26 (2007); see also Marvin v. Marvin, 557

P.2d 106, 121–22 (Cal. 1976). Prior to Marvin v. Marvin, many states refused to even enforce

private contractual agreements between cohabiting couples. Mahoney, supra note 374, at 159.

376

Mahoney, supra note 374, at 162, 193–95.

377

See, e.g., Dunphy v. Gregor, 642 A.2d 372 (N.J. 1994); Lozoya v. Sanchez, 66 P.3d 948

(N.M. 2003); but see Elden v. Sheldon, 758 P.2d 582 (Cal. 1988) (denying standing to unmarried

cohabitant for loss of consortium and emotional distress due to partner’s wrongful death); see

also Mahoney, supra note 374, at 162, 190–93.

378

See, e.g., PA. CONS. STAT. ANN. § 3706 (West 2012); see also Mahoney, supra note 374, at

162, 180.

379

See, e.g., Elisa B. v. Super. Ct., 117 P.3d 660 (Cal. 2005) (finding analogous situation of

second mother to presumed paternity under the California version of the Uniform Parentage Act

(UPA) even though the couple had not entered a marriage or registered as Domestic Partners in

the state).

380

See Mahoney, supra note 374, at 158–59 (discussing the definition of “legal status,” and its

general inapplicability to unmarried cohabiting couples). Mahoney points out that the recognition

that cohabiting couples have received in the U.S. was often driven by unique policy

considerations in the particular field of law in which the recognition arises. Id. at 162–63.

381

Id. at 160; see also AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY

DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (2001).

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282 WEST VIRGINIA LAW REVIEW [Vol. 115

cohabitation the same for tax and social security purposes.

382

Other countries,

including Germany, Belgium, and France, recognize unmarried couples for

some tax and social security purposes.

383

Many European countries also tend to

attach the same parenting consequences to cohabiting couples as to married

ones.

384

Some have general laws regarding the distribution of property among

separating unmarried partners and the protection of the rental home of a

surviving unmarried partner when the other dies.

385

Other countries authorize

wrongful death compensation, immigration benefits, and public health

insurance benefits on the basis of unregistered cohabitation.

386

Scholars have remarked that the trend toward decoupling married or

registered couple status from state rights, benefits and duties is complete, or

nearly complete, in countries like Sweden, where married and unregistered

cohabiting partners are virtually identical.

387

Marriage light registration would

logically be less attractive in jurisdictions like Sweden, where the principle

remaining advantage of the relatively recent status of registered partnership is

the symbolic value of being called “legally registered,” rather than “married” or

unregistered “partners,” which is a meager distinction indeed. Unregistered

cohabitation thus constitutes a true marriage light alternative in its own right.

Together, unregistered partnerships and the other marriage light

alternatives described in this Part comprise a veritable smörgåsbord of

experimental regimes for recognizing unmarried couples. This variety can

accelerate and diversify the sort of evolution that has occurred more slowly

under the umbrella of unitary marriage because it merely presents options to

compete with others, rather than altering one institution which all recognized

couples must accept. As described below, the strategies employed by American

social conservatives make U.S. states more likely laboratories for the

proliferation of such marriage light experimentation.

382

WAALDIJK, supra note 313, at 42 (explaining that Denmark, Sweden and the Netherlands

recognize complete equality for all couples, Iceland and Finland do for different-sex couples).

383

Id.

384

Id.

385

Id.

386

Id.

387

Margaret F. Brinig & Steven L. Nock, Marry Me, Bill: Should Cohabitation be the (Legal)

Default Option, 64 L

A. L. REV. 403, 419 (2004) (citing Dorian Manning, The Changing Meaning

of Cohabitation and Marriage, 12 E

UR. SOC. REV. 53 (1996) for the proposition that cohabitation

and marriage have become socially indistinguishable in Sweden and Denmark). But see

AALDIJK, supra note 313, at 9 (finding significant distinctions in around twenty-five percent of

the consequences of different-sex cohabitation and marriage in Sweden in 2005).

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2012] THE REACTIONARY ROAD TO FREE LOVE 283

V. THE LIKELY PROLIFERATION OF MARRIAGE LIGHT OPTIONS FOR ALL

COUPLES

The door to considering marriage alternatives cracked open as soon as

scholars and the public began rejecting the continuing evolution of marriage.

When they balked at same-sex marriage recognition and suggested separating

the communicative component of “marriage” from its legal consequences, the

door opened further. Once states adopted covenant marriage and marriage light

options for some couples the door was wide open. In the meantime, public

opinion has continued to develop in favor of same-sex couple recognition and

other changes to marriage. By amending state constitutions to prevent same-sex

marriage, conservatives have blocked the only way back. Now it appears

almost inevitable that we will eventually face a cafeteria of optional forms of

relationship recognition, leaving “traditional marriage” just one of several

alternatives. This Part sets forth this logic, step by step.

A. The Political Calculus in Favor of Marriage Light

Public support for marriage equality has been increasing, and that

increase has accelerated dramatically over the last three years.

388

In fact, recent

polls have shown a majority of Americans supporting same-sex marriage for

the first time.

389

The level of support for same-sex couples is greater among

younger people, indicating that this trend may continue to accelerate.

390

388

Memorandum from Joel Benenson, Benenson Strategy Grp., and Jan van Lohuizen, Voter

Consumer Research, to Interested Parties 2 (July 27, 2011), available at

http://freemarry.3cdn.net/5ae85613318ade1b2e_8dm6bnq72.pdf (regarding The Rapid Increase

in Support for Marriage Changes Political Equation: Emerging Majority Support the Freedom to

Marry and an analysis of accelerating trends in favor of marriage equality, citing a one percent

annual increase in support for freedom to marry between 1996 and 2009 and a five percent

annual increase between 2009 and mid-2011) [hereinafter Benenson and Van Lohuizen Memo].

The authors of this Freedom to Marry commissioned report were “the top pollsters for Presidents

George W. Bush and Barrack Obama.” Ben Smith, Bush, Obama Pollsters See Dramatic Shift

Toward Same-Sex Marriage, P

OLITICO (July 27, 2011, 10:52 AM),

http://www.politico.com/blogs/bensmith/0711/Bush_Obama_pollsters_.html.

389

Benenson & Van Lohuizen Memo, supra note 388, at 1 (citing prominent Gallup, PRRI,

CNN/ORC, and ABC/WaPo polls from 2011 showing from fifty-one percent to fifty-three

percent of Americans favoring marriage equality); Nate Silver, Gay Marriage Opponents Now in

Minority, F

IVETHIRTYEIGHT BLOG (Apr. 20, 2011), http://fivethirtyeight.blogs.nytimes.

com/2011/04/20/gay-marriage-opponents-now-in-minority/ (referencing four recent credible

polls showing an outright majority of Americans favoring marriage equality, including a CNN

poll from April 2011 that showed fifty-one percent in favor to forty-seven percent opposed); see

also Law and Civil Rights, P

OLLINGREPORT.COM, http://pollingreport.com/civil.htm (last visited

Sept. 6, 2012) [hereinafter Law and Civil Rights] (showing this trend over eight years, including

at least a dozen polls since 2011 indicating support exceeding fifty percent).

390

See Frank Newport, For First Time, Majority of Americans Favor Legal Gay Marriage,

ALLUP (May 20, 2011), http://www.gallup.com/poll/147662/first-time-majority-americans-

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284 WEST VIRGINIA LAW REVIEW [Vol. 115

However, for now, the pro-equality majority is still small and subject to

change. In addition, although the increase in support for marriage equality has

been widespread, the regional starting points were so divergent that same-sex

marriage supporters are clearly still a minority in many states.

391

On the other hand, polls have long shown that a large majority of

Americans support some form of legal recognition of same-sex relationships,

such as civil unions.

392

Even among Republicans, who still tend to strongly

oppose marriage equality, some recent polls show a slight majority in favor of

lesser forms of legal recognition for same-sex couples.

393

The popularity of the marriage light compromise makes perfect sense.

Unless they are extraordinarily confident and ideologically uncompromising,

the proponents of same-sex marriage will also support marriage light and the

proponents of quasi-marriage will support semi-marriage regimes, so long as

the perceived choice is between the less comprehensive form of relationship

recognition and no recognition at all.

394

favor-legal-gay-marriage.aspx (showing that seventy percent of those eighteen to thirty-four

years of age, fifty-three percent of those between thirty-four and fifty-five years of age, and

thirty-nine percent of those over fifty-five years of age favor recognition of same-sex marriage);

see also Andrew Gelman, Jeffrey Lax & Justin Phillips, Over Time, a Gay Marriage

Groundswell, N.Y.

TIMES, August 22, 2010, at 3 (describing a majority of those under age thirty

favoring marriage equality, “not because of overwhelming majorities found in more liberal

states[, but because] . . . a majority of young people in almost every state support it.”); Benenson

& Van Lohuizen Memo, supra note 388, at 2 (citing several polls showing that younger adults

are substantially more supportive of marriage equality, including an ABC News/Washington Post

poll indicating support by sixty-eight percent of those eighteen to twenty-nine years of age, sixty-

five percent of those thirty to thirty-nine years of age, fifty-two percent of those forty to forty-

nine years of age, forty-five percent of those fifty to sixty-four years of age, and thirty-three

percent of those over sixty-four years of age).

391

Ron Tau, Polls Show a Mixed Picture for Legalizing Gay Marriage, POLITICO (May 9,

2012, 5:26 PM), http://www.politico.com/politico44/2012/05/polls-show-a-mixed-picture-for-

legalizing-gay-marriage-122984.html (describing unfavorable attituteds toward same-sex

marriage in Ohio, Pennsylvania, Florida, Iowa, and Virginia).

392

Law and Civil Rights, supra note 389 (describing CBS and Fox News polls showing a

growing majority of Americans supporting either marriage or civil unions for lesbians and gay

men since 2004, reaching sixty-six percent to seventy percent by 2010, when a CBS News poll

showed even a majority of Republicans favoring such recognition for the first time). The number

of Americans supporting state recognition of some form of marriage light may be even greater

than indicated in these polls, since they asked about “civil unions,” which have generally been

understood as quasi-marriage, encompassing all of the state rights and responsibilities of

marriage, just not the label.

393

Id.

394

While this appears to be the case in most political contexts thus far, there are hints that

some LGBT rights groups may be beginning to actively oppose marriage light regimes that do

not go far enough. See, e.g., Abby Goodnough, Rhode Island Senate Approves Civil Unions After

Marriage Measure Falters, N.Y.

TIMES, June 30, 2011, at A16 (describing the strong opposition

of LGBT rights advocates to Rhode Island’s Civil Union bill).

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2012] THE REACTIONARY ROAD TO FREE LOVE 285

In a parallel universe, it is possible to imagine an alliance between

conservative defenders of traditional marriage and proponents of same-sex

marriage combining to oppose any recognition of couples short of full

marriage. But popular opposition to same-sex marriage in the U.S. is so

intertwined with uncompromising religious fundamentalism and anti-gay

animus that such an alliance is now almost unthinkable.

395

Reflecting popular support for compromise, many politicians tend to

favor marriage light as well. While adamantly opposed to marriage equality,

Republicans like New Jersey Governor Chris Christie and President George W.

Bush have shown a soft spot for same-sex civil unions.

396

Prominent

Democrats, including President Clinton and presidential candidates Gore and

Kerry, also stopped at the popular point just short of marriage equality,

supporting quasi-marriage civil unions instead. Although President Obama

famously “evolved” to support marriage equality, he still considers it a state

issue and has not rejected marriage light as an interim step.

397

Ironically, the covenant marriage movement in the United States

reinforces the likelihood of marriage light compromise. Covenant marriage

broke down the barriers against experimenting with alternatives to the marriage

monopoly. One observer has already argued for extending the Christian

religious idea reflected by covenant marriage to its logical non-sectarian

conclusion—recognition of a cafeteria of different marriage options based on

the convictions of various religious and secular communities, requiring the

state to enforce those particular rules with regard to the community members

who choose them.

398

395

This appears to be true even in the rare jurisdictions where advocates of marriage equality

are secure enough in their position to oppose a marriage light compromise as insufficient. See id.

(explaining that LGBT rights advocates and the Roman Catholic Church finally agreed on their

opposition to the Civil Union compromise, but certainly not indicating any institutional Catholic

or other conservative support for same-sex civil marriage as a preferable alternative).

396

Jarrett Renshaw and Jenna Portnoy, Christie Won’t Say Whether He’d Reject Gay

Marriage Bill, N.J.

REC., Jan. 13, 2012, at A4, available at 2012 WLNR 855020; Rosemary

Winters and Robert Gehrke, Governor’s Civil-Unions Stand Panned, Praised, S

ALT LAKE TRIB.,

Feb. 11, 2009, available at 2009 WLNR 2689461; Scott Lindlaw, Some Conservative Groups

Uneasy with Bush’s Stand on State-Sanctioned Civil Unions, AP W

ORLDSTREAM (Oct. 26, 2004),

http://www.highbeam.com/doc/1P1-101773231.html.

397

Mr. Obama’s Welcome Evolution, WASH. POST, May 10, 2012, at A18.

398

See Nichols, supra note 18, at 929. Of course, this interesting proposal to honor each

couples’ selected marriage and divorce law as regulated by any of various “groups (like

Catholicism, Islam and Judaism),” allowing them to “co-exist within society and to regulate

marital issues with only minimal state involvement” (i.e., enforcement) might raise more issues

than it resolves. Id. at 988. Would polygamy be recognized? What if one member of a couple

converted to another religion after marriage? Does this violate the establishment clause? Israel

has a regime somewhat similar to this proposal, recognizing marriage according to the tenets of

four different religions, but with no secular marriage law. Brett G. Scharffs & Suzanne Disparte,

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286 WEST VIRGINIA LAW REVIEW [Vol. 115

Covenant marriage proposals represent a compromise by social

conservatives, who would have preferred to roll back liberal divorce rules for

everyone rather than just those who opt-in to covenant marriage. Although

there was little popular and political appetite for mandatory covenant marriage,

there was sufficient support for the optional alternative in three states.

399

Supporters viewed this as a good first step.

400

Like covenant marriage on the right, marriage light is a compromise for

supporters of marriage equality.

401

They too tend to view semi-marriage or

quasi-marriage options as intermediate steps in the right direction.

402

In the end,

however, the “first steps” invented by proponents of both marriage equality and

universal covenant marriage may wind up as permanent new alternative

institutions, undermining the status and normative effects of unitary

marriage.

403

B. Advantages of Marriage Alternatives for Couples with a Choice

Given a choice, some couples are likely to support continued

alternatives to marriage once they recognize the advantages. In a country where

grocery shelves are filled with dozens of different types of water for sale, it is

hard to imagine any other result. And there are more reasons to differentiate

among forms of relationship recognition than among bottles and cans of H

There are many different forms of legal alternative to marriage

throughout the U.S. and foreign countries, and each presents distinct

advantages over marriage. While some options extend only to pairs who could

Comparative Models from Religious to Civil Marriage Systems, 12 J.L. & FAM. STUD. 409, 411

(2010).

399

See supra notes 83–85 and accompanying text.

400

See Krisy Gashler, Wedded Bliss?, DESERET MORNING NEWS, Aug. 1, 2002, at C01,

available at 2002 WLNR 11218910 (citing the founder of Americans for Divorce Reform’s

description of covenant marriage as a good first step towards reducing divorce); Katherine S.

Spaht, Covenant Marriage Bill May Stem Divorce Tide, N

EW ORLEANS TIMES-PICAYUNE, June 8,

1997, at B6 (explaining that the Louisiana covenant marriage bill is “the first step” in the

direction of revising no-fault divorce laws to make marriage “the commitment it once was”).

401

See, e.g., David Ariosto, Rhode Island Legislature Passes Civil Union Bill, CNN (June 29,

2011), http://articles.cnn.com/2011-06-29/us/rhode.island.civil.unions_1_civil-unions-couples-

legal-rights?_s=PM:US (explaining that the Rhode Island civil union bill “is widely seen as a

compromise intended to provide same-sex . . . rights and benefits, while also preventing an

expanded legal definition of marriage”).

402

See generally Ariosto, supra note 401 (quoting marriage equality proponent Rhode Island

Gov. Lincoln Chafee); Cain, supra note 326 (explaining that gay and lesbian groups in Austria

see the country’s new registered partnership law as “significant progress” in the conservative,

Catholic country).

403

See infra Part V.F (arguing that marriage light, once established, is likely to survive the

eventual acceptance of marriage equality).

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2012] THE REACTIONARY ROAD TO FREE LOVE 287

not marry in a given jurisdiction (e.g., same-sex couples and close relatives),

others provide choices with significant communicative and substantive

advantages to couples who could.

The most attractive alternatives are those providing the largest number

of distinctions from both marriage and unregistered cohabitation.

404

But even

the most marriage-like alternative unions communicate messages that some

couples prefer. For instance, some political and religious leaders have

“converted” their longtime legal marriages into covenant marriages to

communicate a message about the permanence and sanctity of their union and

this institution.

405

Like their European counterparts, other American couples

may wish to avoid the historic religious, patriarchal, and anti-gay symbolism of

marriage.

406

They may also wish to temporarily or permanently escape the

expectations and costs of elaborate wedding ceremonies.

407

Marriage light

registration could provide legal marital protections without these social

implications and expectations.

408

In addition to social and communicative variations, there are numerous

substantive legal distinctions among marriage, unregistered cohabitation, and

diverse registered alternatives to marriage.

409

All of these differences result in

advantages for some couples.

Many different-sex couples who choose French PACS are not ready to

commit to marriage because they are afraid it may end in divorce with its

expense, legal complications, and public message of failure.

410

Although

divorce generally is less complicated for American couples, our divorces can

lead to claims based on community property or other methods of defining and

dividing “marital property.”

411

Divorcing spouses can claim temporary and

404

See supra Part IV.A.

405

See supra note 86 and accompanying text.

406

See supra pp. 270–272; see also ORR, supra note 359.

407

Young Americans and Europeans frequently cite wedding costs as a reason to wait about

marriage. Jack Doyle, The Long Wait to Wed . . . How the Typical Bride Is Now Aged 30, D

AILY

MAIL UK, Mar. 31, 2011, available at 2011 WLNR 6232736; Pamela J. Smock, Wendy D.

Manning & Meredith Porter, “Everything’s There Except Money”: How Money Shapes

Decisions to Marry Among Cohabitors, in 67 J.

MARRIAGE & FAM., 680 (2005), available at

2005 WLNR 24916132.

408

In fact, data from the most recent U.S. census appear to support the view that ceremonial

marriage may be returning to its medieval role as a resort of the elite propertied classes. United

States: For Richer, for Smarter; the Decline in Marriage, E

CONOMIST, June 25, 2011, at 42

(reporting increasing correlation between higher education and marriage, particularly when

children enter the picture).

409

See supra Part IV.

410

See generally Cody, supra note 318.

411

See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 956 (Mass. 2003).

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288 WEST VIRGINIA LAW REVIEW [Vol. 115

permanent alimony rights.

412

Even if a couple does not file for divorce, a

spouse may claim support upon separation.

413

Avoiding these consequences

upon termination of a relationship could justify the choice of domestic

partnerships in Maine as well as PACS in France.

414

On the other hand, one of the main attractions of covenant marriage

regimes is the difficulty of termination.

415

Counseling, fault requirements, and

shame serve as tools to assure permanence.

416

This too appears to appeal to

some couples.

In addition to issues regarding termination, numerous other incidents of

marriage have advantages or disadvantages for some couples. The attraction of

various forms of marriage light may depend on the absence of these incidents.

For example, different-sex Marylanders may have good substantive reasons to

forego marriage in favor of that state’s very limited gender-neutral form of

domestic partnership.

417

Spouses in Maryland may file state income taxes jointly. This is

desirable for many couples. However, some married couples are also subject to

an infamous “marriage penalty,” paying higher state income tax rates than their

single counterparts.

418

Widows and widowers in Maryland may have a right to override a

decedent’s wishes and claim a statutorily mandated elective share of their

spouses’ estates.

419

A woman who married late in life to a man of means might

leave a will, devising all of her property to children from a prior marriage.

However, if she died first, her widower could legally override her wishes and

claim at least one-third of her net estate.

420

Some couples in Maryland may reasonably prefer to enter a domestic

partnership rather than a marriage in order to avoid these undesired

consequences. As domestic partners, the couples would still have rights to visit

412

Id.

413

Id.

414

ME. REV. STAT. ANN. tit. 22, § 2710(4) (2011).

415

See supra Part II.B (describing how covenant marriage was a compromise proposal in

furtherance of stricter divorce requirements).

416

See supra notes 82–84.

417

See S.B. 566, 425th Leg., 2008 Reg. Sess. (Md. 2008) (codified as 2008 Md. Laws 4597);

S.B. 597, 425th Leg., 2008 Reg. Sess. (Md. 2008) (codified as 2008 Md. Laws 4649).

418

Len Lazarick, Progressive Delegates Objected to the Income Tax Hikes Too,

ARYLANDREPORTER.COM (May 18, 2012, 7:59 AM), http://marylandreporter.com/

2012/05/18/progressive-delegates-objected-to-the-income-tax-too/.

419

MD. CODE ANN., EST. & TRUSTS § 3-203 (LexisNexis 2012) (authorizing a surviving spouse

to elect a one-third share, or a one-half share if there is no surviving issue).

420

Id.

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2012] THE REACTIONARY ROAD TO FREE LOVE 289

each other in the hospital, share a room in a nursing home, and make certain

healthcare and funeral arrangements.

421

Minor children can also factor into the equation. A spouse is generally

the presumed parent of a wife’s child born during the marriage, entailing

substantial rules regarding custody, visitation, support, and out-of-state removal

when married parents divorce.

422

Many parents may favor this commitment,

and the desire to make these rules mandatory is a strong argument for

maintaining traditional marriage rules.

423

However, one can certainly imagine a

mother who would rather not have to ask a court for permission when she

wants to move with her child to a different state if her marriage doesn’t work

out. She might choose a semi-marriage regime instead. On the other hand, a

different couple contemplating pregnancy might want to ensure that both

partners remain together with the children except in the most extreme

circumstances. That couple might choose to enter a covenant marriage before

conceiving a child.

A choice between marriage, marriage light, and covenant marriage

provides some couples with options they desire, but Colorado’s contract-based

“designated beneficiary” regime takes flexibility to a whole new level.

424

Colorado couples who want more control can cheaply customize the legal

consequences of their relationship by selecting from a menu of options

regarding joint property ownership, hospital visitation, medical decision-

making, intestate inheritance, and standing in a wrongful death suit.

425

C. How DOMA Makes Marriage Light Options More Attractive

All of the examples above can be advantages under state or foreign

law. When the United States Congress created DOMA, numerous additional

distinctions were created that can make marriage light more attractive to even

the most traditional American couples.

426

By coupling federal invisibility with

legal state recognition, couples enjoy substantive legal advantages similar to

marriage under state law, while avoiding the disadvantages of marriage under

federal laws.

DOMA requires the federal government to ignore state same-sex

marriages and treat same-sex spouses differently from different-sex spouses.

427

421

See MD. CODE ANN., HEALTH-GEN. § 6-101 (LexisNexis 2012); S.B. 566, 425th Leg., Reg.

Sess., (Md. 2008); S.B. 597, 425th Leg., Reg. Sess., (Md. 2008).

422

See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 956 (Mass. 2003).

423

See supra notes 144–149 and accompanying text.

424

COLO. REV. STAT. ANN § 15-22-104 (West 2012).

425

See supra note 354 and accompanying text.

426

See Defense of Marriage Act, Pub. L. No. 104-199, § 3(a), 110 Stat. 2419 (1996) (codified

at 1 U.S.C. § 7 (2006) and 28 U.S.C. § 1738C (2006)).

427

Id.

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290 WEST VIRGINIA LAW REVIEW [Vol. 115

DOMA also appears to constrain recognition of different-sex marriage light

partners since it expressly limits the meaning of the word “spouse” for federal

purposes to “a person of the opposite sex who is a husband or wife.”

428

DOMA arguably does not limit federal recognition of different-sex

quasi-marriage partners in states like New Jersey, whose civil union statute

expressly defines the terms “spouse,” “husband,” and “wife” to include civil

union partners.

429

Federal law has long incorporated state family law

definitions, like those regarding marriages between cousins and biracial couples

as well as unlicensed common-law marriages.

430

However, the text of DOMA

appears to prevent federal recognition where state law does not define domestic

partners as “husband” and “wife.”

431

428

Id.

429

N.J. STAT. ANN. § 37:1-28 (West 2012) (“[W]henever in any law, rule, regulation, judicial

or administrative proceeding or otherwise, reference is made to ‘marriage,’ ‘husband,’ ‘wife,’

‘spouse,’ ‘family,’ ‘immediate family,’ ‘dependent,’ ‘next of kin,’ ‘widow,’ ‘widower,’

‘widowed’ or another word which in a specific context denotes a marital or spousal relationship,

the same shall include a civil union [pursuant to the provisions of this act.]”); see also infra note

481 and accompanying text.

430

The U.S. Supreme Court has observed that “[t]he scope of a federal right is, of course, a

federal question, but that does not mean that its content is not to be determined by state, rather

than federal law,” particularly “where a statute deals with a familial relationship; there is no

federal law of domestic relations[hips], which is primarily a matter of state concern.” De Sylva v.

Ballentine, 351 U.S. 570, 580–82 (1956). See also Titshaw, supra note 74, at 562–73 (describing

the federal reliance on state anti-miscegenation, consanguinity and common law marriage law to

determine whether to recognize couples as “spouses” under federal immigration law). But, if

DOMA were repealed or struck down as unconstitutional, there would be good arguments that

legal state quasi-marriages should be recognized for some federal purposes. For instance, Cain,

an expert on tax law and its implications for same-sex couples, says she “can’t see the wisdom in

not treating spousal equivalents as spouses absent DOMA . . . .” She points out that appropriate

rules for the treatment of spouses at divorce, death and transfer of property have evolved over

time since the beginning of the modern income tax in 1913, and there is no reason not to apply

those time-tested tax rules to couples who are in the same position with respect to state law rights

and responsibilities based on quasi-marriage recognition. E-mail from Patricia A. Cain, Inez

Mabie Distinguished Professor of Law, Santa Clara Law School (Aug. 3, 2011, 19:21 EST) (on

file with author).

431

This could arguably extend to situations where state law expressly provides for equal

treatment between civil unions and marriages. See Letter from Pamela Wilson Fuller, Senior

Technician Reviewer, I.R.S., to Robert Shair, Senior Tax Advisor, H&R Block (August 30,

2011), available at http://beyondhealthcarereform.com/2011/12/changes-in-illinois-civil-union-

partner-tax-status/ (citing 750 I

LL. COMP. STAT. ANN 75/20 (2012)) (reading the gender-neutral

Illinois Religious Freedom and Civil Union Act to recognize different-sex partners in a civil

union as “husband and wife” under the Internal Revenue Code based on the Illinois act’s

provision that “[a] party to a civil union is entitled to the same legal obligations, responsibilities,

protections, and benefits as are afforded or recognized by the law of Illinois to spouses . . . .”).

However, it is hard to imagine DOMA’s extension to different-sex couples in other semi-

marriage unions, let alone forms of quasi-marriage.

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2012] THE REACTIONARY ROAD TO FREE LOVE 291

One could argue that such a reading of DOMA is too literal and remote

from the intent of Congress, which focused mainly on prohibiting recognition

of same-sex relationships.

432

But DOMA’s proponents also purported to

“defend traditional marriage,” a motivation arguably furthered by the

prohibition of marriage light alternatives for different-sex couples.

433

The federal invisibility of marriage light relationships has numerous

negative consequences for many couples. But for some, it also entails

substantial advantages since visibility comes with significant disadvantages.

Professor Pat Cain has enumerated a long list of significant federal tax

advantages for couples who are not recognized by the Internal Revenue

Service, such as twice the deduction for step-parent adoption expenses as well

as avoidance of anti-tax-abuse rules for married taxpayers and the “marriage

penalty.”

434

For example, two-wage-earner, different-sex couples in states like

Nevada may have an incentive to opt for domestic partnership registration over

marriage to avoid the federal marriage tax penalty, while still enjoying similar

state benefits.

435

California, Washington, and New Jersey lawmakers noted the social

security related advantage of domestic partnerships for older different-sex

couples when they extended partnership eligibility to those over the age of

sixty-two.

436

Benefits can be significantly less after they marry.

437

These

couples can now presumably enjoy the state benefits of domestic partnerships,

yet avoid the disadvantage of marriage for federal purposes.

438

While this

approach may seem dishonest to some, it certainly has substantial advantages.

And if it’s gaming the system, these states show no qualms about playing

along.

432

Titshaw, supra note 53, at 446–74 (describing DOMA’s legislative history).

433

Id.

434

Patricia A. Cain, DOMA and the Internal Revenue Code, 84 CHI.-KENT L. REV. 481, 500–

03 (2009) (listing disadvantages of marriage recognition in the context of the federal invisibility

of same-sex marriage on account of DOMA; so far the IRS has also failed to treat marriage light

partners as spouses under the IRC). In addition to taxes and the other instances described here,

there are likely many other examples of DOMA’s refusal to recognize unmarried state partners.

See, e.g., Peter C. Alexander, Better Than Traditional Marriage?: The Bankruptcy Benefits to a

Divorcee Following a Same-Sex Marriage, Domestic Partnership or Civil Union, 20 A

BANKR. INST. L. REV. 271 (2012). But see, In re Balas, 449 B.R. 567 (C.D. Cal. 2011) (finding

the federal definition of DOMA unconstitutional in a bankruptcy context).

435

See Cain, supra note 434, at 484.

436

See supra notes 350–352 and accompanying text.

437

Pamela Yip, Premarital Concerns Different for Seniors, DALL. MORNING NEWS, June 6,

2012, at 12, available at 2012 WLNR 11860723.

438

This loss of benefits is also a reason why some older different-sex couples have long

chosen not to marry. John R. Schleppenbach, Strange Bedfellows: Why Older Straight Couples

Should Advocate for the Passage of the Illinois Civil Union Act, 17 E

LDER L.J. 31, 36–37 (2009).

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292 WEST VIRGINIA LAW REVIEW [Vol. 115

Even in an area like immigration, where the federal invisibility of

same-sex marriages has forced thousands of U.S. citizens to choose between

spouse and country, there are occasional advantages to DOMA.

439

For instance,

married sons and daughters of U.S. citizens fall into a different immigrant visa

quota category than their unmarried siblings.

440

This can mean waiting three

years longer for permission to join their parents in the United States.

441

Thus, a

son might get his “green card” three years earlier if he and his female partner

442

D. Different-Sex Couples Are Increasingly Likely to be Eligible for

Marriage Light

Over time, as American legislatures began to freely propose new

marriage light alternatives without judicial coercion, they have become more

likely to include different-sex as well as same-sex couples.

443

This trend seems

inevitable. As homosexuality and same-sex couples are viewed more equally,

marriage light regimes can be viewed with less stigma, and heterosexuals are

more likely to appreciate the advantages they can provide.

444

Many European

legislators have recognized this and allowed different-sex couples to register as

partners since the Netherlands first chose to do so in 1997.

445

Once recognized as something more useful than a consolation prize for

gay people, the exclusion of the heterosexual majority from marriage light

options cannot survive long politically. As Justice O’Connor reasoned in her

concurrence in Lawrence v. Texas, a law repressing heterosexuals is not likely

439

Titshaw, supra note 74, at 539–40 (describing one of the 35,820 estimated cases of

separated same-sex bi-national couples as of 2000).

440

See 8 U.S.C. § 1153(a) (2006).

441

U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, VISA BULLETIN, 2 (Aug. 2012).

442

This might not be a good solution for his partner, since she would gain no U.S.

immigration status as the result of her unrecognized PACS. However, it could be beneficial to a

couple that is willing to accept a temporary transatlantic relationship. The citizens’ son could

gain U.S. citizenship in around five years and then marry his partner and apply for her green card

in a category with no wait list.

443

See supra note 345 and accompanying text.

444

See, e.g., Lydia Saad, Americans’ Acceptance of Gay Relations Crosses 50% Threshold,

ALLUP (May 25, 2010), http://www.gallup.com/poll/135764/americans-acceptance-gay-

relations-crosses-threshold.aspx (describing a positive gradual cultural shift in American

perceptions of lesbians and gay men).

445

See Curry-Sumner, supra note 303, at 48–51 (including examples of the Netherlands,

France and Belgium; but other countries, such as Denmark, Sweden and Norway recognized only

same-sex registered partners before they moved on to marriage equality).

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2012] THE REACTIONARY ROAD TO FREE LOVE 293

to last.

446

The political considerations that have stopped mandatory covenant

marriage support this conclusion.

In addition to the current trend and the strong likelihood it will

continue as the advantages of marriage light alternatives become better known

to the heterosexual majority, there may be state or federal constitutional

constraints limiting discrimination against different-sex as well as same-sex

couples.

Recent litigation in Europe has gone beyond the familiar American

challenge to marriage discrimination against same-sex couples.

447

Different-sex

couples are now challenging discriminatory same-sex-only registered

partnership regimes in the U.K and Austria.

448

In the words of Helmut

Graupner, the attorney for Austrian couples challenging discrimination in both

marriage and registered partnerships, “You can’t be a little bit equal, in the

same way as you can’t be a little bit dead or a little bit pregnant. You can only

be equal or unequal.”

449

This simple argument has logical appeal. When

marriage light suits different-sex couples better, why shouldn’t they be able to

claim that legal status? The answer certainly can’t be the inferiority of their

relationships. The law prefers different-sex couples if it prefers anyone.

450

It is

one thing to discriminate in favor of those society prefers. It is another thing

entirely to discriminate against them.

446

539 U.S. 558, 584–85 (2003) (O’Connor, J., concurring) (“I am confident . . . that so long

as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual

conduct of homosexuals and heterosexuals alike, such a law would not long stand in our

democratic society.”).

447

See Kerrigan v. Comm’r of Pub. Health, 757 A.2d 407 (Conn. 2008) (challenging marriage

discrimination against same-sex couples under state constitution); Varnum v. Brien, 763 N.W.2d

862 (Iowa 2009) (same); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003)

(same).

448

Adam Gabbatt & Julia Mueller, Heterosexual Couples Make Second Attempt for Civil

Partnership, T

HE GUARDIAN (Nov. 8, 2010, 10:21 EST), http://www.guardian.

co.uk/lifeandstyle/2010/nov/08/heterosexuals-attempt-civil-partnership (describing both the case

of Tom Freeman and Katherine Doyle in the U.K. and the case brought by Austrian attorney and

LGBT rights advocate Dr. Helmut Graupner). Even British Catholic Bishops seem impressed by

the merits of this anti-heterosexual discrimination. See C

ATHOLIC BISHOPS’ CONFERENCE OF ENG.

AND

WALES, RESPONSE FROM THE CATHOLIC BISHOPS’ CONFERENCE OF ENGLAND AND WALES TO

THE

GOVERNMENT CONSULTATION ON “EQUAL CIVIL MARRIAGE” 6 (June 12, 2012), available at

http://www.catholic-ew.org.uk/Home/News-Releases/April-June/Catholic-Bishops-Conference-

of-England-and-Wales-Responds-to-the-Equal-Civil-Marriage-Consultation.

449

Cain, supra note 326.

450

As U.S. District Court Judge Walker found in Perry v. Schwarzenegger, all of these

arguments for refusing to recognize same-sex marriage boil down to the idea that straight people

are better than gay people, or at least that different-sex relationships are preferable to same-sex

ones. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 998, 1002 (N.D. Cal. 2010), aff’d sub nom.

Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).

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294 WEST VIRGINIA LAW REVIEW [Vol. 115

So far, there has been no challenge to the exclusion of different-sex

couples from comprehensive marriage light status in the United States, but that

is likely to change.

451

When it does, some of these cases are likely to be

successful on similar grounds as marriage equality, and applying the same

standard of scrutiny.

452

E. How Constitutional Marriage Amendments Lead to the Proliferation of

Marriage Light Alternatives for Everyone

Institutional flexibility has preserved unitary marriage as it adapted to

changing social forces over the centuries, but the new rigidity posed by

marriage amendments stops change in its tracks. This sets in motion

experimentation with new, gender-neutral marriage light alternatives,

eliminating the monopoly of marriage as the sole form of legal recognition for

committed couples and their families.

Like running water that is artificially dammed, ongoing social change

is not easily stifled. Imagine that conservatives of past generations had widely

amended state constitutions to freeze in time the political opinions of their age,

prohibiting divorce or constitutionalizing coverture.

453

Public impatience with

outdated views of divorce and women’s subordinate role in marriage could

have substantially undermined the institution of marriage over time.

Lawmakers might have eventually devised legal alternatives to marriage,

allowing divorce and recognizing the right of wives to sign contracts in their

own names. And Americans might well have clamored to these alternatives as

the French have to PACS.

454

Although affecting fewer people directly, fossilized opposition to

same-sex marriage is already causing marriage light work-arounds of

constitutional obstacles established by the George W. Bush generation.

455

public opinion shifts in favor of recognizing same-sex relationships, state

legislatures, which are prevented from recognizing marriage equality, are

forced in the direction of creative new alternatives.

456

Seven states with anti-

451

These challenges are increasingly likely as more states recognize marriage light for same-

sex couples and more different-sex couples recognize the advantages of marriage light for them.

See supra Parts V.A– B.

452

See infra notes 459–461 and accompanying text.

453

See Applebaum, supra note 217, at 51. At least six states did amend their state

constitutions to outlaw bi-racial marriage, and in spite of the smaller numbers it took a broad

U.S. Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967) to overcome those

obstacles.

454

See supra Part IV.A.

455

See supra note 271 and accompanying text.

456

See supra Parts III.B.1, V.A.

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gay marriage amendments already recognize some forms of marriage light.

457

Others will surely follow. In fairness to the heterosexual majority, these

alternatives are more and more likely to extend to different-sex couples as

well.

458

In addition to leading equality-minded legislatures to create and

perpetuate marriage light, state marriage amendments will constrain equality-

minded state courts, increasing the likelihood those courts will recognize a

constitutional right to marriage light for different-sex partners even where

marriage discrimination, and its impetus for marriage light recognition,

continues.

459

Without state anti-gay marriage amendments, courts would be likely to

follow similar paths in either upholding or striking down both marriage

discrimination against same-sex couples and marriage light discrimination

against different-sex couples.

460

If same-sex couples are comparable to

457

See supra Parts III.B.1.

458

See supra Part V.D.

459

Most American state constitutions have equality provisions overlapping, and often

exceeding, the protections provided by the federal Equal Protection Clause. See Robert F.

Williams, Equality Guarantees in State Constitutional Law, 63 T

EX. L. REV. 1195, 1222 (1985)

(arguing that “uncritical ‘reception’ of federal equal protection doctrine . . . has drained [much of

the vitality out of these diverse state provisions]”).

460

Whatever the level, the standard of scrutiny applied to discrimination against same-sex

couples would likely apply to discrimination against different-sex couples as well. One can make

a strong argument for applying more exacting scrutiny to laws discriminating against

traditionally subordinated sexual minorities, rather than against heterosexuals. See Titshaw,

supra note 291 (describing the primary purposes of the Fourteenth Amendment and the Bill of

Rights as the protection of minorities from properly functioning democratic majority rule in

proposing an extension of that concept against laws enacting majority religious beliefs without

any valid secular purpose); see also Irizarry v. Bd. of Educ., 251 F.3d 604, 610 (7th Cir. 2001)

(Justice Posner focusing on the question of whether “[h]eterosexuals cohabiting outside of

marriage” constitute a suspect class, rather than whether marital status or sexual orientation is a

suspect classification); Haldeman v. Dep’t of Rev., No. TC-MD 070773C, 2008 WL 4371517

(Or. T.C. Sept. 24, 2008), aff’d 2010 WL 3655956 (Or. T.C. Sept. 21, 2010) (distinguishing

between heightened scrutiny for same-sex couples and lower scrutiny for different-sex unmarried

couples). However, the U.S. Supreme Court and some state courts have opted for a “blind”

approach to equality guarantees, applying the same level of scrutiny when a distinction is made

on the basis of a suspect classification even if the challenged discrimination appears to favor

women or racial minorities. Rosalie Berger Levinson, Gender-Based Affirmative Action and

Reverse Gender Bias: Beyond Gratz, Parents Involved and Ricci, 34 H

ARV. J.L. & GENDER 1, 1–

3 (2011) (“The Supreme Court has made it clear that race classifications, whether benign or

invidious, will trigger rigid strict scrutiny analysis . . . .”); see also, e.g., Ricci v. DeStefano, 557

U.S. 557 (2009) (finding unconstitutional discrimination in New Haven Fire Department

promotion process that failed strict scrutiny); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701 (2007) (applying strict scrutiny to school district plans using race-based

enrollment targets); Gratz v. Bollinger, 539 U.S. 244 (2003) (applying strict scrutiny in regard to

school affirmative action program); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)

(employing strict scrutiny to all government classifications on the basis of race); Miss. Univ. for

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296 WEST VIRGINIA LAW REVIEW [Vol. 115

different-sex couples warranting equal access to marriage under the equality

guarantees of their state constitutions, it likely follows that different-sex

couples cannot be excluded from marriage light status.

461

On the other hand, courts upholding the constitutionality of marriage

discrimination in favor of different-sex couples are likely to also uphold

discrimination against them in the context of marriage light.

462

The rationales

for upholding marriage discrimination against same-sex couples may or may

not be sufficient to justify discrimination against different-sex couples.

463

But

there would be strong new reasons to allow the exclusion of different-sex

couples from marriage light: the goals of encouraging different-sex marriage

and ameliorating the exclusion of same-sex couples from marriage through a

second-best marriage light substitute. The United States Court of Appeals for

the Seventh Circuit accepted these, among others, as valid reasons justifying

the exclusion of a different-sex partner from the Chicago school system’s

Women v. Hogan, 458 U.S. 718, 723–24 (1982) (explaining that the fact that a law

“discriminates against males rather than against females does not . . . reduce the [intermediate

scrutiny] standard of review”); Lind v. City of Battle Creek, 681 N.W.2d 334 (Mich. 2004)

(holding the same standard of scrutiny applies to “reverse discrimination” under the Michigan

Civil Rights Act).

461

See In re Marriage Cases, 183 P.3d 384, 440–41 (Cal. 2008) (holding that sexual

orientation is a suspect classification triggering strict scrutiny under state constitutional equal

protection clause); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 431–32 (Conn. 2008)

(holding that sexual orientation in a quasi-suspect classification triggering intermediate scrutiny);

Varnum v. Brien, 763 N.W.2d 862, 885, 889 (Iowa 2009) (holding that sexual orientation is a

quasi-suspect classification triggering heightened scrutiny). However, the U.S. Attorney General

Holder recently addressed the level of scrutiny issue in a way the courts have avoided by

analyzing each of the factors the Supreme Court has laid out for identifying a suspect

classification, finding that sexual orientation qualifies, leading to the Justice Department’s

unusual decision not to defend DOMA against constitutional challenges. See Letter from Eric H.

Holder Jr., Attorney Gen., to John A. Boehner, Speaker, House of Representatives, (Feb. 23,

2011), available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html (on litigation

involving DOMA).

462

Conaway v. Deane, 932 A.2d 571, 605–16 (Md. 2007) (finding no suspect or quasi-suspect

class); Hernandez v. Robles, 855 N.E.2d 1, 10–11 (N.Y. 2006) (rejecting application of

heightened scrutiny in the specific context of marriage discrimination); In re Marriage of J.B. &

H.B., 326 S.W.3d 654, 673–74 (Tex. App. 2010) (finding no suspect class); Andersen v. King

Cnty., 138 P.3d 963 (Wash. 2006) (rejecting heightened scrutiny, but leaving the door open to

future plaintiffs who proved sexual minorities met the standard of a suspect class). Obviously,

any argument that heightened scrutiny should be applied on the basis of marriage as a

fundamental right would be inapplicable in the context of challenges to marriage light

discrimination.

463

For instance, arguments for excluding same-sex couples from marriage include tradition

and binding biological fathers to their children and the mothers of their children. Even if a court

were to find these goals sufficient to justify marriage discrimination, they seem inapplicable to

discrimination against different-sex couples.

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employee benefit plan in Irizarry v. Board of Education of the City of

Chicago.

464

So have several high courts in Europe.

465

However, an anti-gay state constitutional marriage amendment throws

a wrench into the equation described above. Not only will these amendments

force equality-minded legislatures to funnel political movement towards

marriage light experimentation, but they also hem in equality-minded judges,

increasing the likelihood that different-sex couples can claim a constitutional

right to marriage light in the same jurisdictions where marriage light is the sole

option for same-sex couples.

Imagine, for instance, that Iowa were to amend its state constitution to

prohibit same-sex marriage and that the state legislature later enacts some form

of semi-marriage in fairness to same-sex couples. Different-sex couples could

rely on Varnum v. Brien (the Iowa marriage case) to claim marriage light

discrimination against them. If the Iowa Supreme Court applied the Varnum

“closer scrutiny” standard to discrimination against different-sex couples, it

could reasonably strike down marriage light discrimination against different-

sex couples who were denied the substantial advantages of marriage light

status.

466

Thus, the state amendment could provide popular and legislative

464

Irizarry, 251 F.3d 604. Judge Posner’s opinion in Irizarry did not involve a statewide

marriage light regime, and the circuit court did not acknowledge that the desired status gave

couples any advantage over marriage. In fact, the opinion did not even view the issue as one of

sexual orientation based discrimination. Still, his discussion of marriage “promotion” as a

rational basis for discriminating against different-sex couples is highly relevant. Id. at 607. See

also Foray v. Bell Atlantic, 56 F. Supp. 2d 327 (S.D.N.Y. 1999) (upholding Nynex Corporation’s

same-sex-only domestic partnership employee benefit policy because different-sex couples could

obtain the same benefits by marrying in a Title VII gender discrimination challenge); Haldeman,

2008 WL 4371517, at *4 (upholding distinction in excluding same-sex, but not different-sex,

domestic partner benefits from taxable income). But see Devlin v. City of Phila., 862 A.2d 1234,

1249, 1251 (Pa. 2004) (applying analysis “generally the same as that under the [E]qual

[P]rotection [C]lause of the United States Constitution” to strike down a Philadelphia ordinance

allowing tax free real property transfers by unmarried couples only if they are of the same-sex,

rejecting Irizarry-based marriage encouragement argument as insufficient to justify the resulting

discrimination, and finding it “irrational to presume that opposite-sex, cohabiting, financially

interdependent couples, who are otherwise inclined to marry, would be dissuaded from doing so

by an ordinance permitting them to transfer real property between them without having to pay a

transfer tax”).

465

See supra pp. 253–255.

466

The marriage amendment might influence the court to alter its prior understanding of

equality between same- and different-sex couples, particularly if it wished to avoid advantaging

only different-sex couples on the basis that sexual orientation is a suspect classification due to the

history of discrimination against lesbians and gay men. The availability of marriage to different-

sex couples would also remain a valid objective if the court found it sufficiently connected to the

exclusion of different-sex couples from alternative institutions. However, a court adhering to the

now common “blind” approach to suspect classifications could reasonably strike down marriage-

light discrimination against different-sex couples, while respecting the state constitutional

definition of marriage. See supra notes 460–461 and accompanying text.

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298 WEST VIRGINIA LAW REVIEW [Vol. 115

incentives to create marriage light, paired with a pre-existing egalitarian

constitutional imperative requiring that such marriage light extend to include

different-sex couples.

While this scenario would not occur in every state, in a country with

thirty state constitutions now defining marriage, it is likely in some—just as

state courts ruled differently on the validity of sodomy statutes before

Lawrence v. Texas set a federal constitutional standard.

467

A federal marriage

equality decision might be the only solution.

F. Once Established, Gender-Neutral Marriage Light Is Likely to Last

Given the accelerating current public opinion in favor of marriage

equality, it is logical to wonder if marriage light is merely a passing phase, a

transitional bridge to marriage equality that will be phased out when the

original goal of equality is inevitably achieved. Tulane Law School Dean David

Meyer has made this argument, pointing to a lack of public enthusiasm for

cafeteria options and to the decisions of Connecticut, New Hampshire, and

Vermont to phase out marriage light regimes for most or all residents upon the

adoption of marriage equality.

468

This hypothesis appears to hold in the limited

context where marriage light is available only to same-sex couples. But it

ignores two key real-world variables: (1) constitutional obstacles to marriage

equality and (2) the availability of marriage light to different-sex couples.

469

Most states now have anti-gay constitutional marriage amendments.

470

Connecticut, New Hampshire, and Vermont are exceptions.

471

If public opinion

in the thirty states with amendments changes to favor same-sex relationship

recognition, legislative options will be restricted, funneling recognition toward

marriage light experimentation until the time, if ever, when marriage equality

becomes so popular that the constitutional amendments can be repealed.

472

That

may provide sufficient time for some couples to see advantages in the new

marriage light regimes and develop a vested interest in their perpetuation.

The general marriage-monopoly-inevitability argument also ignores

another unusual aspect of the examples of Connecticut, New Hampshire, and

467

Lawrence v. Texas, 539 U.S. 558, 576 (2003) (citing five state court opinions striking

down sodomy laws under state equal protection and due process provisions after the U.S.

Supreme Court decision in Bowers v. Hardwick, 478 U.S. 186 (1986)). See also supra Part

III.B.1 (describing and classifying the thirty state constitutional amendments defining marriage).

468

Meyer, supra note 354, at 130–32.

469

See supra Parts III.B.1, V.D.

470

See supra Part III.B.1.

471

Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws, NAT’L CONF.

ST. LEGISLATURES, http://www.ncsl.org/issues-research/human-services/same-sex-marriage-

overview.aspx (last visited Oct. 21, 2012).

472

See supra Part III.B.1.

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Vermont. The terminated institutions in those states all fell within the minority

of marriage light regimes that did not extend to any different-sex couples.

473

They seemed to serve solely as a consolation prize for same-sex couples who

could not marry. In that context, it made sense to phase out marriage light when

the states adopted marriage equality. Legislators would likely refuse to favor

same-sex couples with a choice between marriage and marriage light not

available to the heterosexual majority. But that logic falls apart when different-

sex couples already enjoy such a choice. In those instances, lawmakers have

presumably pursued goals other than the mere consolation of same-sex couples.

And such gender-neutral marriage alternatives have become increasingly

popular.

474

They may even be constitutionally mandated.

475

When same-sex couples obtain more comprehensive relationship

recognition, lawmakers actually tend to repeal same-sex-only forms of marriage

light but to maintain established marriage light options to the extent they are

also available to different-sex couples. For example, the District of Columbia

has continued its gender-neutral domestic partnership regime even after

enacting full marriage equality.

476

So will Maryland and Maine if their

November 2012 referenda favor marriage equality.

477

Developments in Washington and New Jersey demonstrate this point

precisely. When these states began recognizing domestic partnerships for same-

sex couples, they also extended eligibility to different-sex couples involving

partners over the age of sixty-two.

478

When Washington recently enacted a

marriage equality act, that law eliminated the domestic partnership option for

most same-sex couples since they could now marry.

479

Yet it maintained that

option for all couples where one partner is over sixty-two years old—the exact

same extent to which domestic partnerships already served as an alternative for

473

See William N. Eskridge, Jr., Family Law Pluralism: The Guided Choice Regime of

Menus, Default Rules, and Override Rules, 100 G

EO. L.J. 1881, 1943 (2012).

474

See BADGETT & HERMAN, supra note 197.

475

See supra Part V.E.

476

See Marriage and Domestic Partnership Information, DIST. COLUMBIA,

http://glbt.dc.gov/DC/GLBT/Resources+and+Publications/Marriage+and+Domestic+Partnership/

Marriage+and+Domestic+Partnership+Information (last visited Oct. 21, 2012).

477

MD. CODE ANN., FAM. LAW §§ 2-201 to -202 (LexisNexis 2012); H.B. 438, 2012 Leg.,

430th Sess. (Md. 2012) (adopting marriage quality for same-sex couples without repealing

Maryland’s four-year-old gender-neutral domestic partnership legislation); Susan M. Cover,

2012 Election: Some Want Marriage Question Reworked, P

ORTLAND HERALD PRESS, June 21,

2012, available at 2012 WLNR 12945129.

478

See WASH. REV. CODE ANN. § 26.60.030(6) (West 2012) (limiting domestic partnerships to

same-sex couples and couples where at least one of the persons was sixty-two years of age or

older); N.J. S

TAT. ANN. § 26:8A-4(b)(5) (West 2004) (limiting domestic partnerships to same-sex

couples and couples where both partners were sixty-two years of age or older).

479

S.B. 6239, 62d Leg., Reg. Sess. (Wash. 2012). This law may not come into effect if voters

reject it in a November 2012 referendum.

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300 WEST VIRGINIA LAW REVIEW [Vol. 115

different-sex couples.

480

This made sense, because the bases for recognizing

older different-sex couples was unchanged, and that rationale now extends to

older same-sex couples as well. When New Jersey enacted a quasi-marriage

same-sex civil union statute, it followed the same pattern. It generally phased

out the existing option of semi-marriage domestic partnership, but it made an

exception for all couples where one partner is over sixty-two years old—the

extent to which different-sex couples already qualified.

481

These examples illustrate the rule: The survival of marriage light

variants appears to turn on whether, and to what extent, the existing regime

extends beyond same-sex couples at the time when marriage equality or a more

comprehensive form of marriage light is recognized. Democratic majorities

(e.g., heterosexuals) do not lightly relinquish established rights available to

all.

482

With this caveat, even Dean Meyer’s Vermont example proves the point.

Vermont and Hawaii maintained their reciprocal beneficiary regimes after they

began recognizing same-sex marriage and quasi-marriage civil unions,

respectively.

483

Thus, they too retain lighter institutions to the extent they

represent something more than a second-class marital substitute for same-sex

couples—here, recognition of non-conjugal relationships.

The correlation between institutional survival and gender-neutrality of

marriage light institutions occurs abroad as well. Belgium and the Netherlands,

for example, continued their gender-neutral registration of partnerships even

after recognizing marriage equality for same-sex couples.

484

On the other hand,

Denmark, Iceland, Norway, and Sweden discontinued their same-sex-only

partnership registration when they recognized marriage equality.

485

Although

480

Id. §§ 8–9.

481

2006 N.J. Sess. Law Serv. § C26:8A-4.1 (West) (eliminating the domestic partnership

option except for partners sixty-two and older).

482

This is the genius of the few social programs that have become sacrosanct in American

politics: social security, Medicare and home mortgage tax exemptions.

483

See VT. STAT. ANN. tit. 15, § 1301 (2012); HAW. REV. STAT. ANN. § 572C-1 (LexisNexis

2012).

484

See Property Effects of Marriage and Registered Partnership, EUR. COMMISSION,

http://ec.europa.eu/justice/civil/family-matters/marriage/index_en.htm (last updated Mar. 2,

2012) [hereinafter Property Effects]. South Africa simultaneously recognized marriage and civil

unions for all couples in 2006. Froançois du Toit, National Report: The Republic of South Africa,

19 A

M. U. J. GENDER SOC. POL’Y & L. 277, 280–81 (2011).

485

Property Effects, supra note 484 (listing Sweden among countries where only same-sex

partnerships were registered); Ministry of Justice, Sweden, Family Law: Information on the

Rules, at 25, available at http://www.sweden.gov.se/content/1/c6/13/83/44/12624b3b.pdf; D

ÓRA

GUŎMUNDSDÓTTIR, DANISH INST. FOR HUMAN RIGHTS, STUDY ON HOMOPHOBIA, TRANSPHOBIA

AND

DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION AND GENDER IDENTITY, LEGAL

REPORT: IRELAND 15 (2010), available at

http://www.coe.int/t/Commissioner/Source/LGBT/IcelandLegal_E.pdf; Nor. Ministry of Foreign

Aff.,

Norway Introduces New Marriage Act, NORWAY.ORG,

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2012] THE REACTIONARY ROAD TO FREE LOVE 301

legislation has not yet been introduced, this theory predicts that France will also

retain its popular gender-neutral PACS if it recognizes marriage equality next

year as planned.

486

VI. C

ONCLUSIONS

For over a generation, queer theorists, feminists, social engineers, and

other socially liberal scholars have promoted state recognition of more, and

more flexible, forms of consensual private relationships.

487

While these calls

have become louder and more numerous over time, they do not seem to have

resonated outside the academy and other relatively small circles in the United

States. No significant political constituency or prominent political leader

openly supports this vision. However, these voices have powerful political

allies who are turning the tide in favor of a radically liberal cafeteria of

relationship options for everyone. Those unlikely, and apparently unwitting,

allies are the conservative opponents of marriage equality.

Over the last two decades, social conservatives have used every tool at

their disposal to fight against same-sex marriage recognition. This included a

strategy to amend constitutions, locking in fleeting policy preferences until

popular opinion someday shifts just as far in the opposite direction or courts

use the federal constitution to strike them down.

488

Perhaps they believe that

they can turn back not only the growing majority sentiment of Americans who

now appear to favor same-sex marriage, but also the larger majority of

Americans who have long favored some form of state-recognized same-sex

unions. But such a reversal seems unlikely.

Of course, if opponents of marriage equality are actually reacting to an

anti-gay agenda rather than “defending marriage,” their strategies make more

sense. Some may be so loath to recognize the equality of gay people or same-

sex couples under any circumstances that they are willing to allow collateral

damage to the status of marriage in the process.

This is not to say that Maggie Gallagher and others are all insincere

when they base arguments against marriage equality on concern for the

maintenance and strengthening of traditional marriage norms.

489

But it is to say

http://www.norway.org/ARCHIVE/policy/gender/ekteskapslov (last visited Sept. 7, 2012).

However, many of the advantages of marriage are provided without any formal registration in

these countries.

486

France to Introduce Same-Sex Marriage Bill, UPI.COM (Aug. 26, 2012,

11:06 AM), http://www.upi.com/Top_News/World-News/2012/08/26/France-to-introduce-same-

sex-marriage-bill/UPI-90231345993582/?spt=hs&or=tn (reporting that French Prime Minister

Jean-Marc Ayrault promised to send a bill to the National Assembly and Senate in October, 2012

to allow same-sex couples to marry and adopt children).

487

See supra Part II.C.1.

488

See supra Part III.B.

489

See supra pp. 234–236.

TITSHAW [FINAL] (DO NOT DELETE) 10/24/2012 10:28 AM

302 WEST VIRGINIA LAW REVIEW [Vol. 115

that the popular and political forces so critical to their legislative and

referendum successes have been animated by anti-gay animus.

490

It is also to

say that the strategies of those sincerely supporting the institution of marriage

have been severely misguided, actually leading in the opposite direction by

undermining the preferred position of unitary marriage in our laws and society.

If anti-gay sentiment were not the prime reason for the success of “pro-

marriage” forces enacting statutes and constitutional amendments in forty-five

states, the success would not have been limited to the repression of same-sex

couples.

491

But it has been. The three states that enacted an entirely voluntary

covenant marriage option have seen them largely unused.

492

As the mastermind

of America’s first such law complained: “‘There are a lot of hypocrites in this

world . . . . A lot of these people screaming about same-sex marriage? Boy,

howdy, they sure know how to turn on a dime’” when it comes to even

voluntary covenant marriage for different-sex couples.

493

Not to mention

marriage reform that would actually require more of different-sex couples.

The form of conservative American marriage legislation and

amendments also indicates that their common objectives are more anti-gay than

pro-marriage, particularly when contrasted with more neutral and

comprehensive European pro-marriage provisions. For instance, in spite of its

location in Georgia’s “Bill of Rights,” that state’s anti-gay constitutional

provision is clearly focused only on refusing rights to same-sex couples. Its

only purported affect on marriage is to “prohibit” same-sex marriages in

Georgia.

494

It then goes on to expressly refuse recognition of “the benefits of

marriage” to “union[s] between persons of the same-sex,” to refuse full faith

and credit to any foreign same-sex marriage, and—for good measure—to

eliminate any judicial jurisdiction “to consider or rule on any of the parties’

respective rights arising” from “such relationship.”

495

Germany’s 1949 Constitution, in contrast, not only guarantees

“marriage and family” the “special protection of the state,” but it also specifies

particular duties of the state to promote families.

496

For instance, children may

only be removed from their parents on account of serious neglect, “every

490

See supra note 45 and accompanying text. The realization of this underlying animus

contributed to the recent conversion of one prominent longtime opponent to the marriage equality

position.

491

Prior to 1993, seven states had statutes defining marriage as a different-sex union, but

forty-five states had such statutes and/or amendments by 2008. Melissa B. Neely, Note, Indiana

Proposed Defense of Marriage Amendment: What Will It Do and Why Is It Needed, 41 I

ND. L.

REV. 245, 248–49 (2008).

492

See supra Part II.B.

493

Allman, supra note 83.

494

GA. CONST. art. I, § 4, ¶ I(a) (2004).

495

Id. § 4, ¶ I(b).

496

See supra pp. 250–252.

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2012] THE REACTIONARY ROAD TO FREE LOVE 303

mother shall be entitled to the protection and care of the community,” and

“children born outside of marriage shall be provided the same opportunities for

physical and mental development” as children born in wedlock.

497

These

provisions guarantee positive as well as negative rights to protect and promote

German marriages and families.

498

Clearly there are models for constitutional provisions that actually aim

to assist couples who do marry as well as parents and children more generally.

Focusing on the exclusion of same-sex couples from marriage will do nothing

to help different-sex couples, and it will actively harm the children of gay

couples, forcing them to grow up out of wedlock.

499

Amendments like

Georgia’s do not even attempt to affect different-sex marriages. Nor do they

purport to prevent different-sex marriage light alternatives to traditional, unitary

marriage.

500

Even most of the amendments that do apply to different-sex

marriage alternatives are unlikely to prevent all forms of marriage light.

501

Instead, the amendments merely encourage greater experimentation with more

diverse, lighter institutions.

Conservatives, who are truly interested in preserving the central role of

marriage as a guiding norm in our society, could expend their energy on

directly relevant political battles to make biological fathers responsible, to

support mothers and children, to promote new marriages and support existing

497

Article 6 [Marriage—Family—Children] (1) Marriage and the family shall

enjoy the special protection of the state. (2) The care and upbringing of

children is the natural right of parents and a duty primarily incumbent upon

them. The state shall watch over them in the performance of this duty. (3)

Children may be separated from their families against the will of their parents

or guardians only pursuant to a law, and only if the parents or guardians fail

in their duties or the children are otherwise in danger of serious neglect. (4)

Every mother shall be entitled to the protection and care of the community.

(5) Children born outside of marriage shall be provided by legislation with

the same opportunities for physical and mental development and for their

position in society as are enjoyed by those born within marriage.

RUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW],

May 23, 1949, BGBl. I, art. 6 (Ger.), available at https://www.btg-

bestellservice.de/pdf/80201000.pdf.

498

See supra pp. 250–252.

499

See supra notes 142–144, 245 and accompanying text.

500

See, e.g., ALA. CONST. art. I, § 36.03 (2011) (invalidating a “union replicating marriage of

or between persons of the same sex”); G

A. CONST. art. I, § 4, ¶ I(a) (2004) (limiting only laws

relating to same-sex couples); N

EB. CONST. art. I, § 29 (2000) (only prohibiting recognition of

“same-sex relationship[s]”). Many other state amendments were worded in a way that could

potentially affect heterosexuals. See, e.g., K

Y. CONST. § 233A (2004) (foreclosing recognition of

“[a] legal status identical or substantially similar to that of marriage for unmarried individuals”

without reference to their sex); S.D.

CONST. art. XXI, § 9 (2006) (“The uniting of two or more

persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be

valid or recognized in South Dakota.”).

501

See supra Part III.B.1–2.

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304 WEST VIRGINIA LAW REVIEW [Vol. 115

ones, or even to fight against no fault divorce and other changes to the

different-sex marriages they claim as their motivation. Instead, many have

limited their struggle to the battles they could win by playing to popular

prejudices against gay people. But such focused populist strategies only work

to the extent the underlying popular opinions remain constant. That does not

seem to be the case regarding same-sex marriage, nor has it been the case

regarding marriage more generally.

502

In the end, the intense focus on whether same-sex couples can marry

has distracted greatly from any focus on what marriage means for those who

can. More significantly, it has greatly increased the likelihood that the long-

time marriage monopoly will be broken apart into various alternative forms of

state relationship recognition. The resulting cafeteria of relationship options for

everyone may be a good thing. Queer theorists, feminists, social engineers, and

social liberals may welcome this change. But dismantling unitary marriage is

not a conservative development. Those who truly care about traditional

marriage must learn to welcome evolution as one of its most enduring

attributes, accepting same-sex spouses just as earlier generations accepted no-

fault divorce, bi-racial spouses, and wives as their husband’s equals.

502

See supra Parts II.A, V.A.