Competing Approaches to Same-Sex Versus Opposite-Sex, Unmarried Couples in Domestic Partnership Laws and Ordinances

Competing Approaches to Same-Sex Versus Opposite-Sex, Unmarried Couples in Domestic Partnership Laws and Ordinances* I. INTRODUCTION Efforts to enact domestic partnership schemes like that embodied in chapter 6 of the ALI Principles of the Law of Family Dissolution are faced with a fundamental question as to the proper scope of coverage. Motivated in part by a desire to provide marital-like benefits to same-sex couples who lack full marriage rights, drafters of these schemes must decide whether to include opposite-sex couples within the schemes' ambit. The purpose of this article is to explore the competing ways in which various approaches to domestic partnership laws treat opposite-sex, unmarried couples in comparison to samesex couples. An important social and ethical question underlies this inquiry: Are there relevant differences that would justify treating opposite-sex, unmarried couples differently from same-sex couples? I identify three different approaches to this issue. The first approach, which I term the Leveling Position, treats same-sex couples more favorably than it treats opposite-sex, unmarried couples by offering domestic partnership benefits only to the former.1 The second approach, which I term the Equality Position, treats same-sex couples and opposite-sex, unmarried couples identically in granting domestic partnership benefits. This is the position taken by the ALI Principles of the Law of Family Dissolution, under consideration at this conference.2 Finally, the third approach, which I term the Moralistic Position, condemns domestic partnership schemes in general and, in doing so, treats opposite-sex, unmarried couples more favorably than same-sex couples.3 Specifically, the Moralistic Position insists that the only relationship between opposite-sex couples worthy of state recognition is the marital relationship. At the same time, because it condemns homosexuality, the Moralistic Position opposes any state recognition of same-sex relationships whatsoever. Not only does it oppose extending marriage rights to same-sex couples; the Moralistic Position also opposes the state's recognizing same-sex relationships through any other statutory or regulatory program, including domestic partnership schemes. Accordingly, while opposite-sex couples are encouraged to marry, same-sex couples are effectively encouraged to disappear from the state's visage. In discussing the Moralistic Position, I will of necessity have to step away from domestic partnership schemes and discuss the issue of marriage rights for same-sex couples more directly. I will examine these approaches from several perspectives. First, I will ask whether the justification offered by each makes sense in light of a fundamental goal of family law: Does the approach tend to foster stable, long-term, mutually supportive, committed relationships between two people that are conducive to rearing children in a financially sound environment?4 Second, I will ask how each approach fares in terms of principles of fairness and equality, principles critical to our constitutional democracy. Finally, I will examine each position from the viewpoint of a gay rights advocate and ask whether the approach is a wise strategic position in furthering the civil rights of gay and lesbian people in our society. This leads me to a final introductory point. I want to make my underlying position clear from the outset. Though this paper focuses on domestic partnership issues, because of the centrality of chapter 6 of the ALI Principles of the Law of Family Dissolution to this conference, it is my strong belief that nothing less than full marriage rights should be extended to same-sex couples. Accordingly, all domestic partnership schemes, including that embodied in chapter 6 of the ALI Principles, must be seen as second-best solutions, as but a way station on the road to full marriage rights for gay and lesbian people. …