Marriage Mimicry: The Law of Domestic Violence

ABSTRACT In this Article, Professor Colker argues that the legal system does not simply privilege those in marital relationships but has now begun to privilege those in "marriage-like" relationships through what she terms a marriage-mimicry model. She uses the law of domestic violence to critique this model. She traces the haphazard development of the law of domestic violence and argues that it has served to underprotect many of the victims of domestic violence because lawmakers have reflexively only provided legal recourse for those in marriage-like relationships without asking who is most in need of legal protection. She argues that the legal system should disentangle privileges and benefits from marriage and, instead, use a functional approach to deciding who receives those benefits. TABLE OF CONTENTS INTRODUCTION I. THE LAW OF DOMESTIC VIOLENCE A. Historical Developments B. Domestic Violence Protection Today II. SAME-SEX MARRIAGE AND THE LAW OF DOMESTIC VIOLENCE A. The Extension Strategy B. Same-Sex Marriage Ban and Domestic Violence III. THE DISENTANGLEMENT SOLUTION CONCLUSION APPENDIX A APPENDIX B INTRODUCTION In our society, few oppose marriage. (1) Liberals, the religious Right, law and order conservatives, gay rights advocates, and even feminists, support some conception of state-supported marriage. (2) These groups olden disagree on the proper role of the state in the regulation of marriage, but they are committed to law reform consistent with their version of a stronger marriage institution. (3) Because of the broad-based support for marriage within our society, no successful politician can oppose the institution. (4) Our legal system generally reflects support for the institution of marriage. (5) It also privileges those who are in "marriage-like" relationships that are characterized by monogamous, long-term, intimate commitments and financial interdependence. (6) This Article terms that framework of according benefits a "marriage-mimicry" model. The legal system defines who gets privileges and benefits by discerning who is married or most like a married person rather than by asking who should receive these benefits based on the purpose of such benefits. The law of domestic violence reflects this marriage-mimicry model. (7) Legislatures first began to provide legal recourse to married women who were victims of domestic violence in the 1970s and 1980s through the development of warrantless arrest statutes, the availability of civil protection orders, and the funding of battered women's shelters. (8) In the last two decades, legislatures have extended the law of domestic violence to cover others through a marriage-mimicry model. (9) Under this model, individuals can obtain legal recourse from domestic violence if they are in relationships that look like traditional, heterosexual marriages in that they are characterized by two people who have financial interdependence, share an intimate relationship, live in the same household, and have a long-term commitment to the relationship. While it is a positive development that the law has expanded the scope of who may obtain legal recourse from domestic violence, the marriage-mimicry model is not necessarily the correct framework, because it was developed without lawmakers asking the fundamental questions of who is most in need of legal recourse and how the law can best provide that recourse. A more functional approach would permit the legal system to disentangle privileges and benefits from marital status rather than reflexively extend privileges and benefits under a marriage-mimicry model. (10) The reflexive use of a marriage-mimicry model under the law of domestic violence is in sharp contrast to the use of other categories in our legal system. We no longer allow the state to use race, gender, national origin, or religion as a proxy for who should receive privileges and benefits. …