We are delighted to welcome this guest post from Dr. Nicola Barker; a lecturer in law and director of the LLM programme in Gender, Sexuality and Human Rights at Keele University, UK.  She is author of Not the Marrying Kind: Feminist Critiques of Marriage and the Legal Recognition of Same-Sex Relationships (forthcoming, 2011).

I was recently at an academic conference in Vermont, which was a celebration of the 10th anniversary of the Vermont Civil Union and 1st anniversary of same-sex marriage in the state.  Most of the conference participants were happy to celebrate marriage as an achievement of equality and access to numerous important legal rights (and responsibilities) of marriage.  I can understand those sentiments, particularly in a country where access to health care may be dependent on the person one chooses as a spouse having employment benefits and spousal coverage, but I cannot join in the celebration.  Likewise, I can understand the celebrations in Ireland following the introduction of civil partnerships but I do not share the jubilation.

Those of us who are critical of marriage (for reasons other than homophobic moral outrage) have overwhelmingly silenced ourselves during the debates.  As a law academic, I have no problem critiquing laws, or proposed laws, that I consider to be flawed but I have not publicly spoken out against any of the ‘gay marriage’ provisions that have been increasingly emerging over the last decade.  As I reflect on my continuing position as party pooper, I wonder why I haven’t publicly opposed marriage before it is extended to same-sex couples.  Perhaps it is because, despite myself, I have some sympathy with marriage advocates who are trying to overcome the ‘last hurdle’ of their oppression.  Perhaps it is because, having been in a bi-national relationship, I understand how difficult it is to not be able to sponsor one’s partner for immigration purposes without having cohabited for two years – a catch-22 for many couples.  Or perhaps I just couldn’t bring myself to step into a debate between those who hate gay people and those who blindly pursue an ideal of equality, whatever the consequences.  But ultimately, I think my silence was largely due to my inability to formulate a coherent argument against equality.  It doesn’t make sense (legally or logically) to argue against equality, to suggest that gay people and straight people should be treated differently, particularly in a context of continuing state and institutional homophobia.  So what is my problem with ‘marriage equality’, exactly?

Marriage does not create equality.

Marriage allows gay people, who but for their gayness would have every social and legal privilege, to overcome what they see as the last hurdle against them.  It is difficult to suggest that privileged gay people should have less privilege than privileged straight people but, for me, the question is this: why are we (as a gay and lesbian community) so concerned with the fate of the most privileged among us?  And why are we protecting privilege instead of striving for a more equal society?  The middle-class, white, gay man with housing, income, who is not criminalized and presumably has a partner who loves him and is committed to the relationship enough to want to get married, has enough social capital to take care of himself.  Yet, huge resources are deployed to secure him the one extra advantage.  According to the LA Times, just over $44 million was spent opposing the California gay marriage ban initiative, Proposition 8.  A few months ago I was fortunate to be on a panel with Tommi Avicolli Mecca, a queer writer and activist who works with the Housing Rights Committee in San Francisco.  How much difference, Tommi asked, could all that money from supporters of gay rights have made if it were directed towards supporting homeless queer youth instead?

Marriage perpetuates privilege.  The institution has a differential impact depending on a couple’s resources and income.  This is not to suggest that marriage has no use for low-income couples.  Some of the legal consequences of marriage, such as being treated as ‘next of kin’ at a partner’s hospital bedside may actually assist partners who lack the resources to call in lawyers to convince homophobic doctors to recognize the relationship.  But many of the financial consequences of marriage have little or no application for low-income couples.  These include: inheritance tax exemptions; spousal employment benefits; and tax-free capital transfers between spouses. These are required only by couples that, by virtue of having resources above tax-free thresholds or having these assets, are already amongst the wealthiest.

In contrast, low-income lesbians and gay men claiming welfare benefits or tax credits will now be treated as a couple (and thus potentially lose income) even if they do not marry or ‘civilly partner’.  This puts the couple in a more vulnerable financial position by reducing the total income of two benefits claimants (in the United Kingdom example) from ￡120 to ￡90 per week.  It also may put one individual in the relationship in a more vulnerable position.  For example, if one unmarried cohabiting partner has an income above the threshold for benefits/tax credits, while the other is unemployed, they will now be treated as a couple and the benefits withdrawn/reduced accordingly.  Yet, at the same time, there is no legal obligation on a cohabitant to financially support their unemployed partner.  The new relationship recognition, therefore, provides the government with the opportunity to privatize support for this partner, increasing their vulnerability and the precariousness of their financial situation.  This is ‘justified’, including by Stonewall (the UK organization who lobbied for the Civil Partnership Act 2004), by a discourse of ‘accepting rights along with responsibilities’.  However, this is deeply unsatisfactory because ‘we’ are not accepting rights AND responsibilities: some of us are going to gain financially, while others will lose.  There is clearly an inequality fight to be fought, but it isn’t between gays and straights so much as it is between the ‘haves’ and ‘have nots’.  Significantly, it is also not an inequality that can be avoided by ‘choosing’ not to marry.

More broadly, relationship recognition for same-sex couples also further reinforces an ‘ideal’ family norm by extending the assumptions and ‘family values’ of marriage, along with the legal consequences, to same-sex couples.  Queer families, though, have many different forms that are not necessarily based on a conjugal couple unit (with or without children) as recognized by marriage.  The extended family of choice networks, non-monogamous and polyamorous relationships, casual couplings, brief encounters, and other ways of living that do not fall into the category of normative, recognizable relationships, will continue to be ‘outlaws’ as (homo)normative couples become ‘in-laws’.  This is not to suggest that they should also be swept up in the neo-liberal push towards privatizing responsibility but rather to note that they are likely to be further stigmatized because they now have the opportunity to conform and fail to do so.  And, presumably, a state that recognizes gay marriage cannot possibly be a homophobic state.  In this way, the state buys itself immunity for its continuing victimization of the non-conforming, the racialised, the dependent, the poor, the homeless, and the criminalized amongst us.

Civil Partnership is not a more radical form of relationship recognition than marriage.

In addition to the problems that it shares with marriage through its legal similarity, civil partnership attracts both criticism for not going far enough towards equality (in other words, for not being marriage) and support because it lacks the patriarchal and other historical ‘baggage’ of marriage.  In response to the latter, I argue that civil partnership does not sufficiently depart from the institution of marriage to leave the baggage behind.  It is modeled on marriage in terms of its structure, legal consequences, and (with few exceptions) its ideology.  The problems with marriage are much deeper than the cosmetic (religion and the overtly patriarchal symbolisms), yet the ways in which civil partnership departs from it are superficial.

There are good reasons why the state should recognize relationships for some purposes but this does not need to be based on a marriage model.  It is time for a fundamental overhaul of the form and content of relationship recognition, rather than simply extending a flawed institution to another group.  The Law Commission of Canada recommended a useful starting point for this exercise in their report, Beyond Conjugality:

The Law Commission proposes a new methodology for assessing any existing or proposed law that employs relational terms to accomplish its objectives. It consists of four questions.

First Question: Are the objectives of the law legitimate?
If not, should the law be repealed or fundamentally revised?

Second Question: Do relationships matter?
If the law’s objectives are sound, are the relationships included in the law important or relevant to the law’s objectives?

Third Question: If relationships matter, can individuals be permitted to designate the relevant relationships themselves?
Should the law allow individuals to choose which of their close personal relationships they want to be subject to the particular law?

Fourth Question: If relationships matter, and self-designation is not feasible or appropriate, is there a better way to include relationships?

If relationships do matter, and public policy requires that the law delineate the relevant relationships to which it applies, can the law be revised to more accurately capture the relevant range of relationships? This question applies where it is not possible to individualize rights and responsibilities, nor to allocate them on a basis of self-designation. Where the state must ascribe rights and responsibilities to achieve its objectives, it would be preferable to more carefully tailor laws to take into account the functional attributes of particular relationships.

This approach may not be perfect but it appears to me that it provides a much better, more rational, starting point to re-evaluate the basis on which benefits such as tax breaks are distributed.