January 2009

Amy DePaul


Beyond Marriage: An Interview with Nancy Polikoff

As the debate over who should be allowed to marry unfolds across the nation, law professor and author Nancy Polikoff is asking straights and gays alike to consider a broader approach to thinking about what constitutes familial commitment and how it should be legally protected. In her book Beyond (Straight and Gay) Marriage, Polikoff calls for a revamping of regulations related to family law, including death benefits, medical leave and divorce -- all with the end goal of reducing marriage’s privileged status in deciding these matters. To make her case, Polikoff cites numerous examples of legal benefits automatically accorded to marriage that frequently end up hurting children and, for that matter, anyone in nontraditional families, including unmarried couples both gay and straight. As Polikoff puts it bluntly: “People who marry 10 days after they meet get legal consequences, and ones who live together for 20 years don’t.” If Polikoff had her way, she explains in the interview that follows, marriage would no longer be “the dividing line between who’s in and who’s out.” Instead, the law should value all families, according to Polikoff – an increasingly compelling proposition at a time when more than half of U.S. households are headed by unmarried people and one third of children are raised in homes by unmarried people.

Below are excerpts from a lengthy telephone interview with Polikoff.

What’s the basic argument you’re making in your book?

That marriage shouldn’t be the dividing line between relationships that have legal consequences attached to them and those that don’t. People live in all sorts of family constellations and raise children in all sorts of family constellations. What we need to do is look at the many laws now that do draw this division between married people and everyone else and ask, why do we have those laws and what are we trying to accomplish?

Can you give an example?

We have a scheme of workers comp law that says if you go to work and die on the job, benefits will be paid to somebody, and the purpose is to provide some income replacement to someone who was dependent on the worker who died. For the vast majority of these laws, if you’re talking about adult relationships, they do require that a couple be married in order for the survivor to recover, so that if you are an unmarried partner or any other kind of intimate relationship that isn’t marriage, where one is dependent on the worker who dies, you get nothing. The purpose of the law is to compensate for the loss of an income earner. That says to me that anyone who depends on that income earner should be able to get that compensation [married or not].

What about another example?

Our wrongful death system is very rigid. You’re either married or you’re not married in most places. That’s it. If an unmarried partner dies because a drunk driver hits them, a surviving unmarried partner will get nothing… Instead, those damages could go to a surviving parent or sibling who in no way was dependent on that person for support. An unmarried same-sex partner is not on the list unless they are domestic partners or in a civil union in one of the handful of states that have that status. If you are different- or same-sex partners [but unmarried], you don’t get to sue. You get nothing. If you had a kid, the kid could recover. But what if you lived together for 20 years with the child of your unmarried partner? [In the case of your wrongful death], that child and partner will get nothing.

What are some other reforms you’re proposing and are there any models of success?

Look at family leave and sick leave…. The Family and Medical Leave Act requires large employers to provide family leave -- in this case, spouse, parent and child. The definition for adults in too narrow but the Act defines child as anybody to whom you stand in loco parentis, that is, you’re functioning as a parent. Regulations make clear you don’t have to be a biological parent. I like that. Anyone raising children should be able to take leave to take care of that child.

Are there other examples of flexibility in family leave?

The federal government allows its employees to use their own sick leave to take care of anyone with whom they have a close association that is the equivalent of a family relationship. So that’s what federal government employees get, and it’s part of Sen. Kennedy’s Healthy Families Act, a [proposed] law that would require all employers to provide a paid number of sick days.

The federal employee law is ideal because it lets people define their own families. Let me give an example. I have a friend whose mother is widowed and lived with her male partner for 20 years. He got very ill. My friend, who is a federal employee, was able to use her sick leave to help take care of her mother’s partner, whom she certainly considered a stepfather and had been a member of her family for almost half of her life. He falls within the definition of being close enough to someone to have it be the equivalent of a family relationship. Yet the narrow definition of family wouldn’t include him.

How would you decide if someone is close enough to be a family member that he/she is covered under a broad definition of family for purposes of medical leave?

Well for this one we have many years of federal government experience applying their standard. I admit it is very broad. Abuse is possible with any policy, but I think more research could be done on how it has worked for the feds all these years. As a fallback, "all household members" is better than a narrow definition of family.

You mentioned the prospect of defining one’s own family -- is this a new and revolutionary idea?

In 1950, the U.S. Census first defined family as husband, wife and children. It used to be a census of households. Family -- whatever the word comes from in Latin -- used to mean everybody in your household, including your servants. Family hasn’t meant one thing over time.

Let me give you a good example. The Miguel Braschi case begins one of the chapters in my book. It was a famous gay rights case at the time. There was a couple in a rent-controlled apartment. One of them died. They had lived together for over 12 years but the one who died was the only name on lease. Landlords in New York want to get these apartments back so they can rent at market rate, so they wanted to evict the surviving partner. The law said if the main tenant died, anyone in the apartment who was family had protection from eviction, and so the landlord argued a conventional definition -- that is, the definition of family if a person dies without a will, which is spouse, parents, child or siblings. The highest court in New York ruled in favor of the surviving partner. The court said you’ve got to look at the reality of family life and not this fictitious idea.

I don’t talk about letting everyone define their family in some sort of global, everything-goes sense, and having the law protect that. I start with the purpose of the law. You see who should be included for some purposes and who should be included for others.

What are some other examples of people who lose out because marriage receives special legal status?

So far, I’ve been giving examples of people who aren’t married who lose unfairly. But here’s an example of married people who get windfalls unfairly: Private First Class Hannah McKinney. She marries right before she deploys. She has a two-year-old child from a prior relationship whom she leaves with her parents. After she is killed in Iraq, her $100,000 death benefit goes to her surviving husband. The child gets some survivors benefits, but $100,000 doesn’t go to people who are raising her child. I want to ask the Congress: why do we have this benefit? There’s a child who needs the money and not the spouse who was married to this woman for five minutes.

Another example: you can disinherit your minor child but you can’t disinherit your spouse. There are no laws making you leave anything to your children except Louisiana. Everywhere else, if you die and have written a will and do not leave the statutorily required amount to your spouse, the spouse can still get that amount; the deceased does not have the right to disinherit the spouse. We ought to say you can’t disown minor children. We don’t do that. That’s an example of how we privilege marriage too much.

What about in cases of illness; would you allow someone to appoint a non-family member, say a best friend, to make health decisions?

If the best friend is the one they want to make their health decisions in the hospital, then they have the right to do that. I think we’d all agree the purpose of a medical decision maker is to have a person who would make the decision you would make yourself.

We have a set of default people and they are a very inappropriate fit. Look at Anna Nicole Smith’s burial. I think we all agree people should be buried where they want to be buried. The list of priority is designed to effectuate what people would want. If you followed that list her mother would have taken her back to Texas and buried her there when the whole world knew she wanted to be buried in the Bahamas -- to be buried next to her son. Had the Florida court followed Florida law, that would have been the result. But the whole world was watching -- Court TV, the news -- and so with the whole world watching, Florida courts were not going to let a woman who hadn’t spoken to her in 10 years [Smith’s mother] bury [Smith]…

In a slight of hand they come up with a theory as to why it was fine for Smith’s baby’s lawyer to bury her in the Bahamas next to her son. If you read this opinion and Florida law, any law student would say they were playing quite fast and loose with the Florida law. There’s a statute that says who gets priority: if there’s no spouse or living adult child, parents get to bury you. My argument is you shouldn’t have to be Anna Nicole Smith to be buried when you want to be buried.

Won’t it be complicated to grant legal rights to friendships?

I think we can get it right. It won’t be your best friend who gets workers comp benefits when you die. Should your best friend be someone for whom you can use your own sick leave? I would probably say yes to that. There are people who are not married, who don’t have children, who are old enough that their parents are dead, who have very strong friendship networks. If you’re giving employees six days paid sick leave to take care of family members, and they want to use it on a best friend, I would include those people. But I wouldn’t let them get workers comp survivors benefits. It’s not a global definition of family; it’s more nuanced but it’s much more fair to how people live their lives today.

You’ve being driven off in an ambulance. If you’re married, your spouse can ride with you. If it’s your best friend, you ride by yourself. Does that make sense? No. That’s how I want us to rethink how we deal with families and relationships.

How do you institute the appointment of medical decision-makers outside a marital or blood relationship? Your book mentions a registry.

Lots of states have registries, and some are amazingly user friendly… when people have the opportunity, for example, to designate such a person when they get drivers' licenses, or some other easy and free way, it will be more common. There will always need to be a fallback for the people who don't.

How do you think your ideas would be received among social conservatives who exalt traditional marriage and promote it through a variety of federal policies?

I obviously disagree with people who think marriage is so special that it should get this status. I do address them in my book and wouldn’t expect them to like my proposals. But there are some of them that I think even the most hardcore people in that camp actually would support, because they make sense for other reasons.

For example, I don’t think there’s anybody who’s going to say if you’re a married person and can’t make decisions, for health reasons, that your spouse must be given the right to make those decisions. I think everyone, regardless of political leanings, would agree that you should get to decide [who acts on your behalf]. Two studies show 33 and 50 percent of married people pick people other than spouses to make medical decisions. For some people, they wouldn’t want their spouse to make a difficult decision. They know which of their siblings or children would do it. What is the purpose of any surrogate decision-making scheme? To do what the person would want.

But for the most part, social conservatives are not going to agree with changes that add unmarried interdependent partners. They’re going to want to force people to get heterosexually married. There are people in the gay rights movement that take a position that is close to the right wing on marriage: they believe marriage deserves special rights. I think that isn’t the position of the majority of the people who do marriage-quality work.

And how have gay activists who seek marriage equality responded to your book, which argues for broadening their agenda to include the rights of non-married straights as well as gays?

Certainly there are people who do marriage-equality work for whom this is their priority and they do not want to take on anything else.

More than half the states have constitutional amendments that ban same sex marriage. Another 15 or so have statutes that ban it. Those amendments aren’t going away any time soon. I have what may be the only viable strategy in more than half the country to achieve concrete goals for same-sex couples. But I believe very strongly that even in states friendly to same-sex marriage we need to go beyond that and look at these traditional protections. When I do talk to gay people who do a lot of this work, I actually get overwhelmingly positive feedback, though not 100 percent.

The people who do this work full time and do nothing else, which is a small number of people, they are going to say to me, "Don’t talk about this now. We want marriage equality, then we’ll see." But the people who do gay rights work more generally, a lot of them say to me, "Why haven’t I heard this before?" They know gay people are disadvantaged by the current privileging of marriage and that same-sex marriage doesn’t fix that for all gay people. I’ve even had marriage-equality activists say, “Thank you. You have articulated what made me feel uncomfortable about marriage-equality work.”

What is the discomfort?

She knew that being married didn’t make relationships more important for people who were married. As she was fighting for access to marriage, she was uncomfortable that marriage is the gatekeeper for all these legal consequences. She hadn’t figured how to articulate that in a way that made sense as a gay rights supporter.

As a law professor, you are training future generations of attorneys. How do law students respond to your approaches?

Since the Defense of Marriage Act of 1996 my law students have grown up with access to marriage to same-sex couples being the huge issue in the news. What they believe is that the only thing wrong with family law is that same-sex couples can’t marry, and the only thing we need to do in order to protect gay people is achieve same-sex marriage. They come to law school believing that. Then I start to talk to them about the different forms of family that gay and straight people live in and how privileging marriage hurts these arrangements…

In the '70s the debate was on protecting diverse families. I wanted to reclaim that history for a generation of people who didn’t experience it and have never heard of it. They don’t know that gay rights movement was at one point one part of a larger movement supporting diverse family structures. When I do talk about this stuff to my students and the people in that demographic age group, I get overwhelmingly positive responses.

As a woman who raised a child with a female partner, do you ever feel conflicted about asking gay activists to look beyond their self-interest, that is, their quest for marriage equality?

It’s not that I oppose access to marriage, and if I have to vote up or down on gay marriage I’m going to stand on the side of gay rights at every opportunity that comes my way. But that doesn’t mean that I want the issue to be seen in that kind of dichotomy. And my students, who are all supporting same sex marriage, when they see it’s not the only thing, when they see it could distract attention from what are actually better family law reforms, they are very enthusiastic.

In Washington state, if you’re an unmarried couple and you are living together and split up, the court divides your property up. Washington is the only state that does it. They have extended divorce law to the dissolution of heterosexual and same-sex non-married partners. To me that’s the right way to go. In Canada, in 1972 the province of British Columbia ruled if you were unmarried partners who made a life together and split up, one could be ordered to pay spousal support. Not a single state in the U.S. allows that. That’s because we have this bright line. You’re married and then you can get spousal support. But if you have functioned in the same way with a non-married partner… too bad. You leave with nothing. I think it’s wrong. I think that bright line is wrong there. That’s a nut that has yet to be cracked in the U.S.

Is this the civil rights issue of the day -- maybe not so much same-sex marriage, but family definition?

I say marriage equality is a good fight, one of many good fights, like ending employment discrimination and the ban on military service -- as long as marriage exists for heterosexual couples. But as a matter of family policy, fighting for marriage is the wrong fight.

Are gay activists in a unique position to lead a broader agenda that includes straight couples and nontraditional families?

The legal definition of family beyond spouse tends to go child, parent, siblings. And gay people as a group I think are more likely to have a different way of thinking about their family. For many of them it’s because of estrangement due to sexual orientation. They have moved away from where they were raised to live in a place that’s more hospitable to openly gay people. They may have been emotionally disowned by their parents when they come out and yet those people remain their legal next of kin. If you look at the history of the AIDS crisis when everyone was dying and you see who gay men had gathered around them, they had a network of people who had no legal connection to them and some of them learned the hard way what it meant to have an estranged parent get to make all the decisions or exclude the people who had cared for that person. I think many gay people have constructed lives outside the box that I do think make them sensitive to a greater definition of what family is. And I do think because there is not the automatic tracking into marriage, gay people have been more creative.

Also, I’ve seen that depth, value and longevity of relationships are not dependent on marriage. Having economic and emotional interdependence in an intimate relationship for years or decades, gay people have proven marriage doesn’t determine whether one really is a family. Being able to marry shouldn’t mean that the people who marry 10 days after they meet get legal consequences and ones who live together for 20 years don’t. Because gay people have experience of longevity in relationships… we can see you don’t need marriage to have stable family lives.

There’s an organization called the Alternatives to Marriage Project. It’s small but they have a clear position that looks at these issues and says what’s wrong with them. Are gay people uniquely positioned to lead this [fight to end marriage privileging]? I suppose I would say not necessarily. I believe the founders of the Alternative to Marriage Project were heterosexual. I think they founded the organization because they were very clear that you shouldn’t have to be married to get fill-in-the-blank.

Why not abolish marriage?

Some people challenge me on this. It turns out among the many things I’ve learned is that marriage, the ability to marry, does seem to mean a lot to many people, gay and straight. I decided with uncharacteristic humility that it wasn’t my place to say that they were wrong to want something so much. If I can retain a legal system where there is marriage but it’s not the dividing line between who is in and out, I have accomplished my purpose.

So marriage becomes a ceremony?

It’s still a legal status. In the world I’ve constructed, given how much marriage means to many people, we’d retain marriage, although I say we should change the legal name of marriage to "civil partnership." In California, there is no divorce in the state law. They changed the word to "dissolution of marriage." They changed the law because "divorce" had a bad connotation, and "dissolution" sounded better. Statutes have changed "alimony" to "maintenance"; instead of "custody," "parenting time." And yet I’m sure everyone whose marriage ends says they are divorced. "Marriage" has baggage we should be doing away with: the exclusion of slaves, of interracial relationships, the oppression of women. "Marriage" has a sordid legal history. Make it "civil partnership" and let everyone who wants say they are married. There’s very good precedent for taking old family law terms that have outlived their contemporary usefulness and giving them new words, and I would like to do that to marriage. Religious institutions can keep the word and people can be married in their churches and synagogues.