Jul 25, 2003  |  By: NANCY D. POLIKOFF  | COMMENTS     

SUPPORTERS AND OPPONENTS of gay and lesbian rights are facing off over same-sex marriage in the wake of the Supreme Court’s decision in Lawrence vs. Texas. But the majesty of the Supreme Court’s rhetoric should push the gay and lesbian movement in another direction: abolishing the legal status of marriage for everyone.

Those who support opening up marriage to same-sex couples argue that it would win them two things: respect and dignity equal to that offered heterosexual couples, and equal access to tangible benefits.

Lawrence accords the former in no uncertain terms. Justice Kennedy’s opinion articulates the worth of gay and lesbian relationships and rhetorically equates those ties with the bonds between married heterosexuals.

But as long as marriage remains exclusively a heterosexual option, lesbian and gay couples remain second-class citizens denied formal equality.

Consider, however, that this discrimination is remedied by abolishing marriage as much as it is by extending its reach. A legal system that gives benefits to married couples but withholds those benefits from other types of relationships that help people flourish and fulfill critical social functions harms many people, both straight and gay.

CONSIDER AN EXAMPLE from the Web site of the Lambda Legal Defense & Education Fund, the prominent lesbian and gay legal organization whose hard work earned us the Lawrence victory. The site tells the story of “Ronnie,” asserting she is harmed by the inability to marry her partner, “Elaine.”

Ronnie needs to be driven to her frequent medical appointments. Elaine is not entitled to time off to care for her partner under the Family & Medical Leave Act because she is not Ronnie’s spouse. But Ronnie doesn’t need marriage to solve her problem; she needs caretaking by someone who won’t be fired for providing it.

The seven plaintiff couples in the gay marriage case about to be decided by the Massachusetts Supreme Judicial Court cite as reasons to marry increased access to health insurance, health care decision-making, social security and tax consequences.

But marriage is the wrong dividing line for these benefits. A young man caring for the woman who raised him should be able to cover her on his health insurance; two older sisters who pool their economic resources should not fear that the death of one will require the other to sell their home to pay estate taxes.

Gay couples who are raising children together need legal protections, but so do any two people who undertake childrearing together, and many gay men and lesbians do so without having the sexual affiliation associated with marriage.

OUR NEIGHBORS IN Canada are once again out in front. While the legalization of same-sex marriage north of our border has captured all the news, their reevaluation of the legal relevance of marriage deserves attention as well.

A 2001 report from the Law Commission of Canada, “Beyond Conjugality: Recognizing & Supporting Close Personal Adult Relationships,” recommends radical revisions in the law to equally honor and support all caring and interdependent relationships.

While it falls just short of recommending the elimination of marriage, its proposals in arenas as diverse as immigration, pensions, taxes, government benefits, torts and evidence topple the legal pedestal upon which marriage sits.

District of Columbia law is also moving in a promising direction. Domestic partnership here is open to any two adults who live together in a familial relationship characterized by mutual caring — not only those in relationships that mirror marriage. A “close friend,” defined by amount of care, concern and contact, can make health care decisions for an incapacitated individual.

Gay marriage will move us in the wrong direction if it limits legal recognition to married couples only.

Lesbian and gay marriage-rights activists counter criticism of their efforts by saying that the right to marry will provide a choice to gay and lesbian couples: Those who embrace the institution will have the opportunity to enter it, while those like me who find fault with it can simply choose not to marry.

This choice-based rhetoric contains an enormous fallacy. When the state gives one type of relationship more benefits and legal support than others, there is inherently some coercion and free choice is impossible.

Ronnie will have to marry Elaine to receive the care she needs; and if Ronnie doesn’t have Elaine, if they divorce or Elaine dies, then Ronnie’s needs are off the radar screen of the gay and lesbian movement. Lawrence vs. Texas signals the end of second-class status based on sexual orientation. The movement for lesbian and gay rights shouldn’t buy into a different hierarchy, this one based on marital status.