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Sherry F. Colb

Does Denying Opposite-Sex Couples Access to Civil Partnership Violate Their Equality Rights?


Wednesday, November 24, 2010

Do opposite-sex couples have a right to civil partnership?  Tom Freeman and Katherine Doyle of the United Kingdom plan to argue in a future lawsuit that they do. 

Currently, in the U.K., the only available option for gay couples seeking a permanent, legally-recognized romantic relationship is civil partnership; the law does not allow same-sex marriage.  For heterosexual couples in the U.K., by contrast, there is only marriage and no civil partnership option.  The two institutions carry the same legal benefits, save the name. 

Plainly, gay people in the U.K. would like to have the same ability to marry as straight people have.  As it turns out, at least some straight couples also object to the existing regime and would like to be able to enter into civil partnerships, just as gay couples can.  Is there any merit to straight couples' claim that they ought to have the right to do so, as a matter of equality?

Are the Straight Couple's Claims Necessarily Insincere or Meritless?

It is tempting to dismiss the straight couple's claims as either insincere or facially meritless.  After all, the only reason that gay couples have access to the institution of "civil partnership" is their legally-sanctioned inability to marry. 

Civil partnership, in other words, is not offered to same-sex couples as a benefit that is denied straight couples, but rather as a consolation prize that is extended to gay couples who have been denied the right to marry.  Stated differently, one might understand Freeman and Doyle as objecting to their inability to occupy the "second class" status that is available to their gay counterparts, hardly a stirring claim.

Alternatively, it may be the case that straight couples complaining about their inability to become civil partners are actually opposed to the mistreatment of gay couples, rather than to their own alleged mistreatment.  They are, then, perhaps only pretending to be personally aggrieved as straight people who cannot become civil partners.  The reported statement of one activist quoted in the news seems to support this possibility: The activist commented, "Denying heterosexual couples the right to have a civil partnership is heterophobic." 

Whatever one might say about U.K. law, it is implausible to suggest that it reflects an animus or phobia directed at opposite-sex couples.  The quote, accordingly, seems to exemplify the improbability that a straight couple in the U.K. would truly feel that is own equality rights had been violated.

A straight couple offended on behalf of its gay counterparts might refuse to receive the benefits of first-class citizenship on the ground that others are excluded from receiving the same benefits.  Just as a white person might not want to join an all-white club, a straight couple might not want to marry, given that gay couples cannot do the same.  The straight couple might then seek the benefits of a civil partnership -- benefits which they can share equally with gay couples.  On this approach, of course, the straight couple is acting more as an amicus (friend) of aggrieved gay couples than as an independent victim of discrimination, as Tom Freeman and Katherine Doyle purport to be.

It is useful, however, to give the benefit of the doubt to Freeman and Doyle, the twenty-six-year-olds who applied for and were denied a civil partnership.  Whenever the law compels an individual or a couple to accept just one of two distinct legal regimes to satisfy his, her, or its needs -- depending on his, her, or its identity -- this compulsion might give rise to at least two separate sorts of complaints. 

First, we might object to the fact that the law treats one group of individuals or couples worse than the other and thereby consigns some members of society to second-class citizenship. 

Second and independently, we could dispute the legitimacy of separating people into classes based on their identity, even if there is nothing inherently subordinate about one or the other class.  In a slight variant of this second sort of complaint, a person or couple could object to the dual regimes, simply in virtue of the separation, even if he, she, or it is in fact a beneficiary of first-class citizenship. 

An Analogy to Race Discrimination

The way this two-part offense applies to race discrimination is straightforward.  Traditional racial segregation in the United States was objectionable because it gave African-Americans less than it gave to whites, whether the benefit at issue was access to a water fountain, a subway car, a hotel, or a school.  Such segregation was also objectionable, however, on a second ground:  It illegitimately separated people into racial categories for purposes of distributing legal benefits and burdens, regardless of how "equal" the benefits and burdens allocated might be.  This objection becomes salient in interracial marriage cases.

When the Supreme Court struck down the Virginia anti-miscegenation law in the 1967 case of Loving v. Virginia, one reason for the Court's holding was the law's evident aim of enforcing White Supremacy.  Virginia prohibited interracial marriage, in other words, as a means of protecting whites from dilution by other racial groups, and it therefore treated white people as superior to black people (and other racial minorities). 

But another important reason for invalidating anti-miscegenation laws was that it limited the universe of people one could marry on the basis of one's race.  If you were white, then you could marry a white person, but if you were black, you could not.  Similarly, if you were black, you could marry a black person, but if you were white, you could not. 

Your race would accordingly and impermissibly constitute one element of proving that you had committed the crime of miscegenation.  Even in the absence of a White Supremacist message, the law would still have been objectionable because it regulated a fundamentally-important personal decision on the basis of the racial identity of the parties involved, an illegitimate basis for such regulation. 

The intolerable substance of anti-miscegenation laws, then, consisted not only in White Supremacy but also in the creation and perpetuation of a legally-mandated, racially-determined institution of marriage.

An Analogy to Sex Discrimination

If we turn to sex discrimination in the United States, we find a similar two-part offense.  Historically, men have occupied a status superior to that of women, and have thus held power over women's lives.  This power took many forms, including the legal exclusion of women from professions such as the practice of law, as condoned by the U.S. Supreme Court in 1872 in Bradwell v. Illinois.  For a very long time, the law reflected a vision of male supremacy, under which men and women were not simply "separate," but unequal as well.

Notwithstanding the superior position that men have occupied vis-à-vis women, however, some men have objected to their own assignment to a specific role based on their sex.  In bringing the 1982 case of Mississippi v. Hogan to the Supreme Court, for example, Joe Hogan expressed his wish to go to nursing school and become a nurse, rather than a doctor.  The general expectation at the time was that men entering the medical profession would choose to be doctors, while only women -- either because of their lower status, or because of their presumed capacity to nurture patients -- would choose to become nurses. 

Hogan challenged this assumption on his own behalf and argued that the Mississippi University for Women's School of Nursing violated his Fourteenth Amendment right of Equal Protection by denying him entry on account of his sex.   Hogan argued that the State had no business circumscribing his career pursuits on the basis of his status as a male.  Some males may be gifted at the sorts of work that females have traditionally performed, and may want to be able to develop their talents in the same way as a comparably-gifted woman could.  As with bans on interracial marriage, then, a privileged person can object to having to occupy a separate and limited sphere designated by membership in a class whose role has been scripted by history, even if that assigned role is generally preferred over the one that the person seeks.

The Analysis, As Applied to Marriage and Civil Partnership

How might all of this work for marriage and civil partnerships?  One answer is that compelling men to marry only women, and women to marry only men, harms both men and women, by designating the role of "husband" as one that only men can occupy and "wife" as one that only women can occupy. 

Though the status of "husband" has historically been superior to the status of "wife," it is nonetheless an independent harm to men to require them to occupy the first, rather than the second, status against their will.  Even if it is "better," in a variety of concrete ways, to have a wife than to have a husband, a man still should not be forced to have a wife, if he would prefer to have a husband.

Some have suggested, moreover, that sexual relationships ought not to be considered binary in this way and that individuals ought to be able to marry anyone they wish to marry, regardless of whether either of the parties has any desire to have or to be a "husband," a "wife," or something in between.  This argument suggests that what's wrong with insisting on opposite-sex marriage is not simply that people might want to choose a different sort of role (i.e., a woman might want to be another woman's "husband"), but also that people might reject the idea that there must be "husband" and "wife" roles within such relationships at all.  On this approach, the rigidity of traditional marriage is stifling and far too scripted, no matter how flexibly the dual roles within it might be allocated.  Some might react to this rigidity by wanting something other than marriage, and this is where civil partnerships can come into play.

For a gay couple seeking to marry, a civil partnership might be inadequate, given its "consolation prize" quality -- we won't let you marry, but we'll give you all of the concrete legal benefits of marriage and name the institution something different.  But for some gay couples and some straight couples, a civil partnership could be just what the doctor ordered -- an institution through which two committed partners who love each other and want to spend their lives together monogamously can do so, receiving the full legal benefits that come with this commitment, without associating themselves with all of the connotations of marriage. 

We can get a sense of what these objectionable connotations might be by asking what someone who is opposed to gay marriage (and gay partnerships) would say is the proper definition of marriage.  An opponent of gay unions might say, first, that marriage is about a union between a man and a woman.  A straight couple that rejects this script might accordingly prefer an institution that does not contain a traditional sex-role division as part of its historic definition.  Though the couple "qualifies" for the man/woman institution, the members of the couple might seek a union that does not emphasize or demand that one member be male and the other female, given the couple's own perception of what unites its members.  It could also be that the man and woman in the couple are bisexual and do not like the idea of entering a union that inherently negates this aspect of their identities (by affirming their union as necessarily a heterosexual one).

A second part of the traditional definition of marriage is the couple's openness to the possibility of producing children.  A couple that wishes to join together but has no desire to have children might find that this aspect of marriage creates undesirable expectations that they do not plan to meet and may not wish to confront.  If marriage is understood to be about children, then this couple might want to opt out of marriage, even as it opts into many of the legal benefits that marriage offers, via a civil partnership. 

This sort of straight couple -- one that does not like what "marriage" stands for -- might wish to be able to express mutual love and commitment through an alternative institution, one that is less fraught with a tradition of stifling and subordinating role-differentiation and reproductive expectations.  A right of equality with respect to sexual orientation, as guaranteed by British law, would not deny this alternative institution to a couple simply because of its members' sexual orientation, any more than it would deny marriage to a gay couple on the basis of the same, invidious ground.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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