Marriage, Cohabitation, and Same-Sex Marriage

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In this article, I explore some important limits to freedom imposed by family law and contribute to the recent debate about cohabitation and marriage. In particular, I consider a very heated topic at present internationally: Does the extension of marriage fights to homosexual cohabitants have any merit? To answer this question, I inquire into the relationship between marriage and cohabitation. Marriage represents a standard contract into which heterosexuals may opt, although increasingly they avoid doing so; homosexual couples, along with several other groups, such as nonintimate heterosexual cohabitants, are at present commonly prohibited from opting in. Following an examination of marriage as a special case of intimate cohabitation, I conclude at least in a qualified way that excluding homosexuals may be functional rather than discriminatory. I also consider the impact of changing marital law on heterosexuals. As Allen (2006) has pointed out, the nature of marriage is not accidental, but provides certain safeguards for the married, and the alteration of marital law to include new groups is likely to affect established groups. So the main question is whether marriage can be of practical use to same-sex couples. In the course of answering this question, I comment on the current international fashion of increasing the obligations of unmarried intimate cohabitants, which seems to be developing in parallel with the promotion of same-sex marriage and which also has implications for personal autonomy.

Some background information on international trends is helpful at the outset. Most U.S. states, including Connecticut and California, have attempted to declare unconstitutional the ban on homosexual marriage, which is reinforced federally by the Protection of Marriage Act. President George W. Bush has also suggested an amendment to the U.S. Constitution that would stipulate that marriage is a social status reserved for heterosexuals. Such an amendment would not imply, however, that weaker, domestic-partnership laws would be repealed. In Europe, most European Union (EU) states have or are contemplating laws that treat domestic partners more or less the same as married persons in key areas such as property rights and pensions. Some countries, notably the Netherlands, claim that such legal status constitutes a form of gay marriage. (1) Canada, however, not the EU, arguably has the distinction of being first to introduce same-sex marriage, following Halpern v. Toronto City (Ontario Appeal Court 276 [2003]), a successful challenge of the restriction of marriage to heterosexuals. (2) An issue that often surfaces in considering the international movement toward widening marriage is whether the restriction of within-marriage or postdissolution rights and obligations to one rigid form of marriage contract is oppressive or purposeful. (3) Because extension of marriage-like structures to homosexuals tends to go hand in hand with creation of marriage-like obligations between heterosexual unmarried intimate cohabitants, it is best to consider wider issues concerning cohabitation in thinking about gay marriage. Pressures to change marriage may also have arisen because traditional forms no longer fit well. If so, reformed, obligated cohabitation may become a new, dominant form of marriage. This possibility is consistent with the aims of the U.S. marriage-covenant movement, which seeks to preserve traditional hard-to-dissolve marriage for those who want it.

In asking whether any useful purpose might be served by extending marriage rights to homosexuals or by increasing the obligations between cohabitants more generally defined, we are contemplating a movement in the boundary of marriage law. This boundary has moved on previous occasions in many jurisdictions, notably in relation to consanguinity and the remarriage of divorcees. The boundary also clearly differs between jurisdictions: consider the difficulty internationally of recognizing polygamous marriages formed in Islamic jurisdictions. …