March 14, 2008
'Family Values' for everyone!
Michael Wood READ TIME: 9 MIN.
"Advocating marriage for same-sex couples is a sensible way to champion equal civil rights for gay men and lesbians," writes Nancy Polikoff in Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law (Beacon Press). "Unfortunately, it is not a sensible approach toward achieving just outcomes for the wide range of family structures in which LGBT people, as well as many others, live. Those outcomes depend on eliminating the 'special rights' that only married couples receive and meeting the needs of a range of family forms." That's a central thesis of Polikoff's tome, a thoughtful and thorough analysis of family policy past and present that asserts that even the LGBT rights movement has been led astray by the right wing's emphasis on lifelong legal marriage as the cure for all that ails society. But given ever-increasing diversity of family forms, gay and non-gay, Polikoff, an American University Law Professor and out lesbian, argues that it's the time for the law to provide equivalent protections beyond the marital bond.
Q: What led you to write this book now, when marriage equality is close to the top of the LGBT rights agenda?
A: I have been involved with advocacy for LGBT families since the early 1970s and when we started doing this work we understood support for gay and lesbian families to be within a broad context of support for diverse families structures. So if you read the book then you know my description of that period of time and I was very much a part of that and a very strong believer in it. And I think that the emphasis on marriage has come initially, as I write in the book, from a right wing backlash against the gains that happened in the early 1970s. And then you know we have the marriage equality movement today, which as a matter of civil rights is a really good fight; it's a fight for equality and equality for gay and lesbian people is a good thing. But from the point of view of family policy, it is at best incomplete because it doesn't challenge the privileged place of marriage as long as same-sex couples can get access to that privileged place. So this book is about reclaiming a vision of support for the diverse families in which people actually live.
Q: I was fascinated and horrified by the inadvertent collusion you revealed between the LGBT rights movement and the right wing in that both have elevated the married family unit above all others. It seems like both sides have such an investment in marriage. Do you think they can be steered in a broader direction at this point?
A: I think the way to go forward is to think about civil rights and family policy as two separate issues. So as a matter of civil rights, of course in Massachusetts you have to defend the access to marriage for same-sex couples and, in other states where there is a viable, equality-based strategy that can go forward, I think it can go forward as a matter of civil rights law quite credibly. And I would include within that, for example, what's going on in California where they have domestic partnership with the state-based rights and responsibilities of marriage but the litigation is about the word marriage. Well, as long as marriage is something that different-sex couples can do, then what same-sex couples can do needs to be called marriage also because otherwise it's not equal.
But my problem is in basing the claim to marriage equality not on equality, but on marriage as the fix to what's wrong with the problems suffered by same-sex couples today. So that's why in the book ... I give examples from the real world of same-sex couples who have faced difficulty because they're not married, but I say that the harm in the law is making marriage the dividing line between who counts and who doesn't. And the solution is to write a law that values all families rather than fixing the problem for same-sex couples who do marry and still leaving out everybody else. So you know I do think that, when the gay rights movement argues for access to marriage to fix problems that same-sex couples face, there is a danger that then when there is marriage or a state-based equivalent that the idea will be, well you had a problem, we fixed it, what do you have to complain about now? And that will leave out so many LGBT families and relationships, as well as a whole bunch of straight people. So I'd kind of like to keep the two different tracks going. Equality is a civil rights gain but good family policy isn't about access to marriage. ... I'm sure you know in Massachusetts a lot of people lost domestic partnership benefits. Well, in Salt Lake City, Utah, one of my examples in the book, you can name anybody you live with in an interdependent relationship and that person's children to receive your employee benefits, including your health insurance benefits if you work for the City of Salt Lake. So that's a great result; it doesn't privilege marriage, it doesn't make couples marry for health insurance, and it doesn't say you have to be in a couple in order to protect the healthcare needs of your family members.
Q: In Massachusetts, the organization that sponsored a failed anti-gay marriage amendment also filed a reciprocal benefits bill to give limited rights to any two people living in a domestic situation. LGBT advocates oppose the bill, believing that its passage would lay the groundwork for an anti-gay marriage amendment in the future. Are gay activists doing the right thing here?
A: I believe that there should be a form of registry that's open to everybody. In the book I call it a Designated Family Relationship Registry. ... And what I think this Designated Family Registry should do is essentially let people designate next of kin to each other for the purposes of medical decision making, disposal of remains and inheritance if you die without a will. I wouldn't go beyond that. I wouldn't set it up to have anything to do with marriage or couples but merely to make it easy for people to do something that otherwise requires a lot of private documents. The other option, which takes care of everything except inheriting without a will, which to me is a critical part of a valuing all families agenda, is an Advance Healthcare Directive Registry, because the reason that same-sex couples cite most often for wanting marriage is fear of what will happen to them if they're hospitalized, they won't be able to see their partners, and their partners won't be able to make decisions for them. ... And so marriage is totally not the answer to that. It has nothing to do with marriage. It won't help people if they leave the state and everybody agrees that people should get to decide for themselves who plays this role.
I would say that all the LGBT people in Massachusetts ought to care about making it easy for the person that they want to make these decisions for them. A lot of them wouldn't pick their parents and their parents are the ones who are going to make the decision if there isn't some legal structure in place. Why should single people have to go to lawyers and write everything up and worry and worry and worry? ... I haven't looked at the bill in Massachusetts so I don't know all the things that go with it. But I actually think there is the potential for the gay rights movement to reclaim that idea and to not be the sole force behind it but try to go to local ... elderly advocacy groups. Those people care a lot about who's going to make their medical decisions and those kinds of things. So try to figure out if there are any other advocacy groups who would support such an idea from a progressive perspective and take it out of the hands of anti-gay rights folks, take it out of the struggle for equality, and start talking about family policy.
Q: You lay out early on a lot of case law showing a trend toward a broader definition of family beyond the nuclear, married family. Family structures have only gotten more diverse, but public policy has largely reverted back to emphasizing marriage. How did we get here?
A: I think there's no overestimating the impact of the backlash that started in the mid-seventies and grew. It was a backlash against feminism, against gay rights, against the idea of women having children without husbands. I mean I really believe that in that period of time there, the late 1960s, the early 1970s, we were headed in a direction of greater respect and recognition for all sorts of family structures and the backlash against that was vicious and had a lot of success. And then out of that backlash ... by the early 90s and mid-90s this so-called fatherhood movement which then morphed into a right-wing marriage movement. And by then what they had was this bogus social science claim that the decline of lifelong heterosexual marriage and the absence of fathers from the lives of children were responsible for every single social problem and that has had a lot of impact and unfortunately quite a bit of success with the [Bush administration's] $750 million dollars now being spent on marriage promotion rather than on actual anti-poverty programs. Some of these folks who were in these marriage movement organizations work for the federal government now in implementing this idea. ... At the same time, when there came to be a plausible litigation strategy for access to marriage for same-sex couples in Hawaii in 1993 and the gay rights movement sort of moved in that direction. ... I do see some gay rights groups talking about how letting same-sex couples marry will strengthen the institution of marriage and that is rhetoric that comes from that movement. I would like to see that stopped. I would like to see marriage equality supported on the basis that gay people deserve equality rather than on these ideas that really are about promoting marriage.
Q: What has the response been from LGBT leaders and LGBT people generally to your book?
A: I have done a fair amount of speaking about it and actually it's been very well received by the audiences I speak to. I don't think any organization has taken a formal position on it, but I sent the chapter on the marriage equality movement to the legal directors of the three main legal groups - to [Lambda Legal's] Jon Davidson and Mary Bonauto [of GLAD] and to Shannon Minter [of National Center for Lesbian Rights] and all of their comments were really helpful and actually, I think, helped make that chapter better and the book better in general. I think there are some differences of opinion. But we're all part of a movement for LGBT people. So you know, hopefully we can get together in that spirit. Plus, certainly for the national organizations, what are they going to do, abandon all the people in the states that have constitutional amendments that ban same-sex-marriage, many of which ban recognition for unmarried couples? What I'm excited about about my book is that it's a strategy that can work everywhere. I just don't want you guys in Massachusetts to think that you've solved the problems of gay and lesbian families by achieving marriage equality. And I think some of the cases coming out of Massachusetts are already a little troubling in that regard.
Q: You quote historian John D'Emilio calling the marriage equality movement "an unmitigated disaster" and sometimes I wonder in light of all these negative court decisions that have come out since Massachusetts. Do you agree that it's disastrous?
A: I do think that as a civil rights goal, marriage equality is a good fight. Just like the fight to end employment discrimination or the fight to end the ban on military services. It's a fight for equality and so once it's in the political arena in that way, as a question of equality, I support it as a question of equality. I do think that as a matter of family policy, if it's going to derail us from moving forward in a way that values all families, I would find that very unfortunate. But I'm hoping that my book shows a way to go forward. And there may well be some differences of opinion but I do think this message is going to resonate with a lot of people. ... At an event here last week, somebody got up in the question period and said something about how efficient marriage is. And the next person who got up said, "Marriage is efficient for the people it's efficient for. But what about everybody else?" And she was a single lesbian who wanted to make sure that her needs were met as to who was going to make decisions if she was in the hospital and wanted to make sure that the relationship that mattered to her, that if she was ill that somebody would be able to take a leave from their job to take care of her. And I just think we need to start thinking about the relationships and families of all LGBT people and not just this subset if we're looking at family policy.
Nancy Polikoff will be at Kotzen Meeting Center, in Lefavour Hall at Simmons College at 7:00 p.m. on March 13.
Michael Wood is a contributor and Editorial Assistant for EDGE Publications.
