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Why Traditionalists Should Favor Same-Sex Marriage

Last weekend, a new Vermont law took effect. The law allows same-sex couples to create "civil unions" whereby they can obtain all the state benefits and obligations of marriage -- but without the name. The law also allows some unmarried persons, whether in a same-sex or different-sex couple, to become "reciprocal beneficiaries," thereby assuming mutual decision-making and support responsibilities.

By creating quasi-marital options just short of marriage, the Vermont law makes a concession to moral and religious traditionalists who seek to preserve the "sanctity" of marriage as the organizing institution in western society. Ironically, however, experimental laws like Vermont's will undermine the institution of marriage -- much more so than simply legalizing same-sex marriage would. Such laws not only cut down on the total number of married couples by continuing to exclude same-sex couples, but they also encourage many different-sex couples to opt for unions similar to, but short of, marriage. In the long run, they threaten to make marriage obsolete.

Other Countries' Quasi-Marriage Menus: Some Trends

Vermont is not the first jurisdiction to create a menu of quasi-marriage options as a compromise, in an attempt to resolve the battle over same-sex marriage. In 1997, the Netherlands created a new institution, registered partnerships. Any Netherlands couple, whether same-sex or different-sex, may enter into a registered partnership, and it will assure them almost all the same benefits and obligations that apply to married couples. Similarly, in 1999, France created the pactes civils de solidarité (PaCS), an institution that allows both different-sex and same-sex couples to pledge mutual support without going through the formalities of marriage or, more importantly, the difficulties of divorce in the event of a break-up.

in Spain have followed this pattern: lesbian and gay couples demand equal marriage rights, but they clash with traditionalist opposition. This spurs the state to create new regimes for same-sex couples. Sometimes the sequence is reversed, with same-sex cohabiting couples benefiting from legislation initially intended to benefit different-sex cohabiting couples.

For example, Canada initially applied its extensive cohabitation rules only to straight couples. But after a ruling by that country's Supreme Court, the Canadian parliament amended the cohabitation law to include same-sex couples. The same thing has already occurred in Hungary as a result of a court decision. Whatever the chronological sequence, the result is more couples availing themselves of an option other than marriage.

The trend, then, is for states to offer all couples a menu of options, some of them similar to marriage, from which they can choose the option they believe best suits their needs. Generally, the menu allows partners with a lesser degree of mutual commitment to choose a regulatory regime that offers fewer benefits in return for easier exit from the relationship.

The Current Quasi-Marriage Menu in America

In American society, we already have a few options on the quasi-marriage menu. First, couples can just date and be friends, or one can be the caretaker for the other. Such relationships appear to be unregulated, but in fact the law at least protects each partner against torts and crimes -- for example, sexual assault, sexual or other kinds of fraud, theft or conversion of assets, blackmail.

Living together triggers more regulation, under which the state recognizes a sort of contract between the two cohabiting people. If one partner makes a promise to the other to convince him to live with her, courts will enforce the promise. If couples agree to share duties, so that one cares for the household and the other furthers a career, the court will make sure the careerist is not unjustly enriched when the couple splits up. (The famous California palimony case, Marvin v. Marvin, reflects this kind of regulation; many states and countries provide these protections by statute.)

Other Options For Unions Short of Marriage

The new Vermont statute suggests that the menu is changing in this country. The options that have already emerged include the following:

  1. Reciprocal Decision-making. Two people, whether cohabiting or not, may wish to vest one another with decision-making responsibility in the event one of the two is incapacitated and cannot make his or her own decisions due to, for example, a brain injury in a car accident or a terminal illness. The new Vermont law provides this option by statute; in some states, courts are doing the same thing as a matter of implied contract or trusteeship.

  2. Cohabitation Plus ("Unitive" Rules). If cohabiting partners are together for a long period of time or agree in writing, the state can apply "unitive" rules to them. Such rules treat the partners as a unity (what the French call vie commune) and grant them financial and other benefits that reflect their unity, at least as to some matters. The new French PaCS mentioned above, and Canada's extensive cohabitation rules, provide two examples.

  3. Registered Partnership. Some states will allow couples who want to commit to a longer term partnership, but do not want to "marry," to register as committed partners. Such partners need not cohabit. They receive the benefits of the other menu options listed above (including those that are standard under current law), and they take on additional duties to each other as well. Examples of this type of law include the Vermont civil unions law and the various European registered partnership laws.

Menus And Marriage

By choosing from a menu like this, a couple can select the level of state recognition that best suits their needs. But a menu that offers all of these choices may ultimately be anti-commitment. Many couples who would choose marriage will not do so if given other choices, such as French PaCS or Vermont reciprocal beneficiaries. Those other choices offer much easier exits than marriage does, and ease of exit will undermine the durability of the relationship. Were it not for the expense and bother of divorce, more married couples would break up over minor or transitory difficulties.

as the best situs of human flourishing and childrearing ought to be concerned that these new institutions make it easier for couples to enjoy many state benefits without as much state-supported obligation. These laws not only make marriage less special, but they lessen the difficulty of divorce. That should trouble the religious traditionalist and the gay marriage proponent alike. Thus, if traditionalists truly want to preserve marriage -- not just homophobia -- it's time for them to join forces with the gay-marriage activists in a common cause.

William N. Eskridge, Jr. is the John A. Garver Professor of Jurisprudence at Yale Law School.

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