Transcript Pics - Yale Law School

Cinderella's Sequel
After Marriage Equality,
What Next?
William N. Eskridge Jr.
John A. Garver Professor of Jurisprudence
Yale Law School
June 2014
Marriage Equality, 1993
Marriage Equality, 2003
Marriage Equality, June 2013
Marriage Equality, June 2014
The Cinderella Moment, 2012-13
With President Obama’s endorsement of
Marriage Equality and his Reelection (2012) and
the Supreme Court’s decision striking down the
core of DOMA in Windsor (2013), Marriage
Equality enjoyed a Cinderella Moment.
Once dismissed and disrespected, like Cinderella,
Marriage Equality now attracts the attention of
high society and dances in the ballroom.
Cinderella has met her Charming Princess
though no precise Wedding Date yet 
Cinderella’s Sequel:
After Marriage Equality
(1) Consequences for Society
(a) Marriage. Unlikely that gay marriage will
affect the incidence or longevity of marriages.
(Marriage Bounces occurred after equality in
Denmark and Massachusetts, for example.)
Marriage equality would, however, reinforce the
nondiscrimination norm for entry into marriage
and would encourage further relaxation for
marriage between cousins and persons related by
marriage, but probably not polygamy (in the
short/medium term).
Cinderella’s Sequel
(1) Consequences for Society
(b) Sexual and Gender Variation. Normalization
of domestic male roles and breadwinning female
roles; links to feminist norms. Normalization of
homosexuality; more LGBT persons would be
“out of the closet” (often due to their marriages,
a la Lily Tomlin). Normalization of gender
fluidity, as gender delinked from marriage.
Generally, lower stakes for gender and sexual
variation. Decline of LGBTI persons as a coherent
social “group” or as a “social movement.”
Cinderella’s Sequel
(1) Consequences for Society
(c) Religion in America. Marriage Equality will
not formally “require” traditionalist religions to
perform same-sex marriages, but the social
process by which Marriage Equality has
triumphed will put pressure on American religion
to deemphasize procreative marriage and
“natural” gender roles as central to faith.
Compare the process by which LDS and Southern
Protestantism abandoned racial purity (antimiscegenation) as central to God’s Word after the
civil rights movement won constitutional and
legal equality, including marriage equality.
Cinderella’s Sequel
(2) Family Law Relationship Menu
Big trend in Family Law is not modestly expanding
the institution to include same-sex couples, but
instead expanding the family law menu beyond
civil marriage. The end of marriage’s monopoly as
the only regime for romantic couples to organize
their lives ended a generation ago, with common
law and statutory duties and rights for cohabiting
couples. Cohabitation is a legal regime available
in most states to same-sex as well as different-sex
couples. Marriage Equality movement has
stimulated the creation of new statutory regimes,
some of which will become more popular even
after Marriage Equality sweeps the field.
Cinderella’s Sequel
(2) Family Law Menu
(a) Marriage vs. Civil Unions. Marriage will
continue to be the central institution for state
regulation of romantic relationships. But a new
competitor might be civil unions/domestic
partnerships created as compromises to
ameliorate opposition to Marriage Equality.
Increasingly, different-sex as well as same-sex
couples have access to civil unions (e.g., Colorado)
or statewide domestic partnerships (e.g.,
Nevada). Sometimes, civil unions are carried
forward even after a state accords equal marriage
rights (e.g., Hawaii).
Cinderella’s Sequel
(2) Family Law Menu
(b) Designated Beneficiary Laws. Pioneered in
Hawaii (1997), Vermont (2000), and Colorado
(2009), reciprocal or designated beneficiary laws
recognize a cluster of decisionmaking and
fiduciary rules for two persons who want to join a
mutually supportive relationship, but not a
marriage/civil union. Such laws include couples
who are not romantic (e.g., caregiving
relationships) and are much easier to exit than
marriage/civil unions. The Colorado law allows
the couple to tailor the legal “rules” to fit their
own unitive preferences. Colorado retained DBs
when it adopted a civil unions law.
Cinderella’s Sequel
(2) Family Law Menu
(c) Domestic Partnership (Employment Benefit)
Policies. Many companies and local
governments allow employees to secure spousetype employment benefits by designating a
“domestic partner.” Sometimes, these policies
are terminated when Marriage Equality prevails
in a jurisdiction, but usually they are not—
especially when different-sex partners are
included, as they are in most plans. Most
important for health care benefits, but not
limited to those.
Cinderella’s Sequel
(3) Family Law and Children
(a) Nonsexual Reproduction. Many LGBT
couples want to raise children conceived within
the relationship. For male couples, this will
involve a “surrogate” mother, with moral and
legal complications, such as issues of
compensation. (Many jurisdictions treat
surrogacy skeptically.) For female couples, this
will involve assisted reproduction, with a known
or unknown sperm donor, also creating moral
and legal complications, such as issues of privacy.
Cinderella’s Sequel
(3) Family Law and Children
(b) Polyparenting. LGBT families are more likely
than other families to press for legal recognition
of more than two parents with legal
responsibilities and decisionmaking authority for
a child. E.g., two women raise a child borne of a
known sperm donor: when disputes arise, some
courts have ruled that all three adults have
parental rights and responsibilities. Doctrines of
paternity, second-parent adoption, de facto
parenthood come into play. Query: Are three
decisionmakers one too many?
Cinderella’s Sequel
(3) Family Law and Children
(c) Welfare of Children in America. Hillary
Clinton’s challenge for Marriage Equality
supporters: Devote your energies also to
improving the welfare of all children in the
country. Many LGBT persons were, or are friends
with, dispossessed youths, i.e., left vulnerable,
impoverished, often homeless because of family
rejection. Millions of young persons in this
country are vulnerable for more traditional
reasons, i.e., abject poverty, single parent
households, neighborhood violence. Clinton-led
Children’s Movement.
The End
Want to Know More?
William N. Eskridge Jr.
Family Law Pluralism: A Guided Choice
Regime of Menus, Default Rules, and
Override Rules
100 Geo. L.J. 1881 (2012)