Why Marriage?

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April 23, 2013
Deputy Legal Director Hayley Gorenberg

This is the first of a two-part series from a speech delivered April 12 at Princeton University’s Every Voice conference for LGBT and ally alumni.

First, a personal revelation: I, too, have evolved on the question of marriage equality. But I never thought marriage should be reserved for straights. My evolution is on “why fight this fight?”

As a fledgling law student, I attended a passionate panel at the LGBT Center in New York City. Gay rights luminaries took the stage. Tom Stoddard (I didn’t know he was Lambda Legal’s Executive Director), Paula Ettelbrick (I didn’t realize she was Lambda Legal’s Legal Director) and Herstory Archives maven Maxine Wolfe. Tom pressed for marriage. Paula and Maxine championed something new and iconoclastic and creative. Don’t aspire to conform within that patriarchal institution that had deemed women chattel, property of the husband, signified by “man and wife.” Celebrate difference and the opportunity to create something new and progressive. I was captivated, entranced, inspired!

And then I evolved. I came to Lambda Legal 10 years ago. By that time, the community had gotten the fight for marriage equality in gear. I suspect many of us who had been in that room at the LGBT Center were now part of the fight for access to marriage without discrimination based on anyone’s sexual orientation.

The history of marriage may be marked and marred by discrimination of all sorts, but it’s also a rich and meaningful history to many LGBT people. They often grow up aspiring to it as the pinnacle relationship in their lives. It is a way of expressing the most central loving partnership. It is imbued with dignity and respect. Marriage is common social currency. It is easily understood. As children, my clients imagined being married. And now their children want to see their parents married. My clients tell me marriage is a key part of their family values. And they can’t marry, because they are gay. What’s more basic than to say, “If that’s the reason, it’s discrimination, it’s wrong, and so we fight for them”?

You have already heard about the federal cases before the Supreme Court. It’s been a privilege to work on friend-of-the-court contributions to what I believe will be making history.

But let’s talk more locally. I am now working on Lambda Legal’s second marriage equality lawsuit in the state of New Jersey. The first case yielded a decision from the state Supreme Court that same-sex couples deserved equal rights, but punted the format for those rights to the legislature—which hastily spewed forth civil union, a parallel status. Even if same-sex couples get married in neighboring states, or Canada or Iowa—when they return to New Jersey, their relationship status is downgraded to civil union. My clients are routinely insulted, upset—and sometimes seriously traumatized.

They want marriage for the good times and the bad. And at Lambda Legal, we’ve seen too much of the bad. That’s what litigators hear about. Wrongs that need righting. We get a guilty twinge when we talk about a great case, because a great case stems from abysmally awful events.

One civil-unioned couple in our case, Danny and John, ended up in the emergency room of a New York hospital in the middle of the night, after John was hit by a car and sustained major head injuries. Doctors didn’t know whether John would survive. He had a civil union with Danny, a health care proxy naming Danny, Danny’s phone number was apparently the last one dialed in John’s cell phone, and they wear matching wedding bands. Danny had raced to the hospital, where doctors wanted consent for urgent surgery, for a craniotomy. And hospital staff didn’t understand civil union. They wanted to know if Danny and John had what they called “a Massachusetts marriage.” No? Well then, would Danny leave John’s side—while he was hemorrhaging—and commute home to New Jersey to get documents? Would he call what they termed—and it is seared in Danny’s mind—a “real” relative?

Danny and John are eternally grateful the doctors saved John’s life. They have no quarrel with the doctors. They are suing the State of New Jersey for refusing marriage—and confusing the people around them who wanted to help, but were flummoxed about how to do so because of how the state labels same-sex couples.

Every client couple has a medical story to tell. Marsha and Louise, together decades, have medical records calling them, on different pages (and sometimes on the same page), “friends,” “single,” “family members” or “unknown.” Supposedly parallel statuses don’t work. This separateness is not equal.

The children of these same-sex couples are also plaintiffs in our suit. One child recently explained to me how his friend, upon learning his mothers are not married, asked him, “So … does that mean you’re a bastard?” He didn’t want to get her in trouble by repeating the bad language, the insult she called him in her honest question. But he told me he figures it must be true. He must be a bastard.

I think of these examples when I confront, often in academic circles, the question of why Lambda Legal and our clients and LGBT people as a whole don’t create a new institution. Why marriage? Why not make something new that jettisons the admittedly discriminatory aspects punctuating the history of marriage?

The answer: Because even as we have modernized marriage law, there remains the history that makes the word marriage understood—easily, clearly, for the emergency room doctor, for the sixth-grader. It could be a matter of life and death. It could be a matter of how you want to live your life and how you and your children view you.

Aside from how people feel about marriage, and how those around them don’t understand other terms, the government is handing out a bucket of rights and obligations (over 1,100 on the federal level, and hundreds more within states) for married couples and their children. When the so-called Defense of Marriage Act falls, parallel structures and terms will become all the more harmful, because civil-unioned and domestically partnered people won’t have a clear route to federal benefits tethered to marriage.

Marriage is one comprehensive, very low-cost package of rights and responsibilities. We often talk about “lived equality” in the LGBT civil rights movement. What victories would really affect people’s lives? How do we serve people doubly and triply marginalized or oppressed—due to their sexual orientation, their gender identity and their race and their class? How do we get our wins implemented in everyday life? You have to hire—and pay—a bevy of lawyers; take days off from work; draft, file and otherwise execute the documents; and complete applications (with their fees) in an effort to try and approximate the comprehensive legal framework of marriage, available quickly, easily and cheaply—but not if you’re gay.

And while other legal structures, recognizing other configurations of family, could help many people who aren’t helped by marriage, that’s another issue, and it’s not exclusively LGBT—not by a long shot. Single parents cohabiting with other single parents, siblings living together and supporting each other, children supporting parents—all might benefit from more creative recognition of family. But that’s the case regardless of sexual orientation or gender identity. And it’s inherently suspect to look at the marginalized, oppressed community outside, minorities barred from marriage, and say, “You can’t come in. Not for you. Just go build your own, from scratch. Really, it’s more progressive this way. Embrace your stylish, modern alternative! So chic!”

Next: Beyond marriage—what’s on the horizon for the LGBT and HIV rights movement.