Nancy Polikoff Beyond Straight and Gay Marriage
The Valuing All Families Approach to Same Sex Marriage
Oct 11, 2008
Polikoff's approach in Beyond (Straight and Gay) Marriage: Valuing All Families under the Law is to affirm the right of LGBT people to marry, but at the same time to argue that marriage as an institution should not be so important in the law. She argues that the problem with the current civil rights approach to same-sex marriage is that it uses the arguments of the conservative marriage movement and preserves the overwhelming legal importance of marriage to the detriment of unmarried couples and other family members.
Family by Choice, Not By Marriage
Polikoff's "valuing all families" approach suggests that the law should focus on actual support between individuals and should accept evidence such as joint residence, children, and care/financial support. This approach would ensure rights for siblings who depend on each other, friends who are closer than blood family, unmarried partners and their children, and married people regardless of sex.
Current law in a number of areas, Polikoff explains, makes marriage the only significant relationship or establishes a hierarchy of relevant family members (placing marriage at the top) that is not appropriate for all people. She traces the history of the marriage movement and of laws relating to families to show the resurgence of marriage as a legal tool and its gendered nature. She argues that though some gay people will benefit from being able to marry, this is not enough.
The law as it stands does not challenge the emphasis on marriage or its gendered nature, and it does not help the many single LGBT people, or LGBT couples who would choose not to marry, to whom current law joins biological family members who are not nearly important to the individuals as their "chosen family." It also harms other family forms and by implication, married women, who are stuck in a traditional subordinate position by the law.
Emphasis on Children as Inevitable Dependents
Polikoff deals with a number of areas of the law, including divorce, custody, inheritance, worker's compensation, medical leave, hospital visitation, and end-of-life decisions. Her suggestions focus mainly on trying to determine the actual or logically likely intent of the person or people involved.
However, she also includes an idea for automatic provisions concerning children and dependent adults. She terms these "inevitable" dependents, as opposed to "derivative" dependents whose dependent status comes from the dependence of another (for example, a mother may be dependent on her husband for support because she cannot work while she is caring for her inevitably dependent child).
Though this distinction is logical and the law should clearly include provisions to protect children, Polikoff's approach also seems to penalize those who choose not to have children in some areas of the law. While respecting the choices of those whose primary relationship is non-sexual, she appears to have less respect for those in sexual relationships who choose to remain childless. This is one flaw in an otherwise sensible argument that seems to take away from the concept of "valuing all families."
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