Non-Marital Families and (Or After?) Marriage Equality

If, as is widely expected, the Supreme Court soon holds that bans on same-sex marriage are unconstitutional, it is almost certain that the decision will rely heavily on the Court’s reasoning in United States v. Windsor. I strongly support marriage equality. However, a decision that amplifies Windsor’s conception of the harm caused by exclusionary marriage rules could set back efforts to secure legal recognition of, and respect for, non-marital families. That is, Windsor rectified a deep inequality in the law—that same-sex marriages were categorically denied federal recognition—but in so doing it embraced a traditional understanding of marriage as superior to all other family forms. Its rationale and its rhetorical flavor stand in tension with foundational cases from the 1960s and 1970s that dismantled the legal systems under which non-marital children were systematically denied benefits and that protected the decision-making autonomy of couples who engaged in sexual intimacy outside of marriage. The expansion of marriage rights for same-sex couples, including any future victory at the Supreme Court, comes at a time when marriage rates more generally are at an all-time low and non-marital childbearing is at an all-time high. The lesbian, gay, and bisexual (LGB) community is part of these larger trends. Demographers believe that the majority of children currently being raised by same-sex couples were conceived in prior heterosexual relationships that included a member of the couple. Same-sex couples with relatively low levels of educational attainment are more likely to be raising children than couples with advanced degrees; same-sex couples that include racial minorities are also more likely to be raising children than white couples. If marriage and divorce by same-sex couples follow more general trends, the members of the LGB community who are statistically most likely to be raising children are also statistically least likely to marry and remain married. Accordingly, even if same-sex couples enjoy universal marriage rights, it is essential to continue to advocate support of non-marital families and other blended family forms that depart from the “traditional” nuclear family. * Associate Professor of Law, Maurer School of Law. I am very grateful to Courtney Cahill for organizing the “After Marriage” symposium and inviting me to be part of it. It was a day of thought-provoking and inspiring discussion. The symposium was held in January 2014, and this Essay was published in March 2015. Accordingly, this Essay has had a relatively long gestation during a period of extraordinarily rapid developments regarding same-sex marriage. My thanks to all who offered comments to me at the symposium and to those who helped me further consider and revise my thoughts as the underlying legal landscape changed, including: Will Baude, Alexander Boni-Saenz, Mary Bonauto, Courtney Cahill, June Carbone, Mary Anne Case, Max Eichner, Martha Ertman, Bill Eskridge, Haley Gorenberg, Clare Huntington, Courtney Joslin, Andy Koppelman, William Kuby, Serena Mayeri, Melissa Murray, Doug NeJaime, Marc Poirier, Laura Rosenbury, Lior Strahilevitz, and participants in the Workshop on Regulating Family, Sex, and Gender at the University of Chicago Law School; the Emerging Family Law conference; the Law and Society Association conference; and the AALS Workshop on Sexual Orientation and Gender Issues. Thanks too to the editors of the Florida State University Law Review for their extremely conscientious work (and for their patience with multiple revisions of this Essay as the law changed). I am grateful to Dean Austen Parrish and the Maurer School of Law Summer Research Stipend Program for supporting this project. The electronic version of this Essay was modified slightly after print publication to reflect that the consolidated Supreme Court case (pending when this Essay was published) which struck down all remaining bans on same-sex marriage is known as Obergefell rather than DeBoer. 548 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 42:547