Nancy D. Polikoff
Beyond (Gay and Straight) Marriage: Valuing All Families under the Law
Beacon Press, 2008
Law professor Nancy Polikoff argues in Beyond (Gay and Straight) Marriage: Valuing All Families under the Law that marriage and the rights currently associated with it were developed decades ago in a culture where sex outside marriage was taboo, illegitimate children were outcasts, and gender roles were legally written into marriage.
The sexual revolution changed the way people planned their lives and saw marriage, resulting in "gender neutrality superimposed on a set of laws grounded in the gendered nature of marriage." The current call for same-sex marriage doesn't address the many ways families have changed since the 50's, she argues.
Polikoff, in her thorough, provocative, and wonky treatise, lays out comprehensive policies that can be enacted to value families and familial relationships in all their forms by creatively expanding rights associated with marriage to link them more closely with their real-world purposes.
The first part of the book explains the context for how we got to where we are today, the advances made by the second-wave feminist movement when it came to marriage, and the way all that's been attacked by the Religious Right since the late 70's. The second part of the book is devoted to describing specific areas of her approach to diminish the importance of marriage: health care, medical leave and care, dissolution of relationships, and economic compensation (like Social Security and wrongful death).
The basic idea is that since fewer people are getting married and spending their whole lives in those marriages, fewer people have access to those rights and the government needs to keep up with the way people are living to improve their lives. So, for example, medical decision-making power could be improved, she suggests, by making the process of declaring who has power of attorney more simple, like has been done in Idaho. Hospitals would have this information on file or the state would keep a database that could be accessed with a person's ID card to see who's in charge, instead of defaulting to the next of kin for unmarried people.
This, she argues, would bring the law back to its intent, which is to protect people's autonomy when they can't protect it themselves. She cites a poll that found that one-third of married people in Chicago would not choose their spouse under such a system, so they'd better be able to protect themselves. This would also work for same-sex couples, like Patrick Atkins and Brett Conrad, because they could more easily designate each other as the one they want in charge when they can't make decisions, and for people not in conjugal relationships, like unmarried elderly people, caregivers and the people they help, and single LGBT folks estranged from their families of origin.
Most of her solutions follow that formula; detach the right from marriage, look at why we even have it in the first place, then find the most logical solution based on that reasoning, not on marriage. Polikoff says, "The focus on access to marriage may be constricting the imagination of advocates for LGBT families who attribute every problem a same-sex couple experiences to marriage discrimination."
She culls a half-century's worth of case law to support her argument, yet the book isn't beyond the reach of the non-lawyer. Her reasoning is sound and she points to many state and local solutions to the limitations of marriage that would fall under the umbrella of valuing all families. It's simply grounded in the progressive idea that government is supposed to make people's lives better without making others' lives worse, and it's presented as another way the government can better reflect the culture it's in.
While her goal is to knock marriage off its position of superiority, her argument is direct, reasonable, and non-radical. As the US has fallen behind most Western countries and its own people in understanding the importance of non-marital relationships and valuing untraditional families, America is definitely ready for these sorts of revisions to the law. Even Idaho and Salt Lake City get ink in this book for their progressive laws that expand marriage rights beyond marriage.
The book's a valuable reference just for the vast research Polikoff undertook to write it, and an important resource for those working to help LGBT people.
For more information on Beyond (Gay and Straight) Marriage: Valuing All Families under the Law, visit Nancy Polikoff's website.