Stephanie Coontz’ op-ed piece today in The New York Times, “Taking Marriage Private,” is very much worth a read (it’s short and to the point), and absolutely worth passing on to anyone who is a bit befuddled about the history and current limitations of that strange institution, marriage.
Some choice clips (all stuff that should be in the talking points of thinking folks whenever they take up the topic of marriage):
â€¢ For most of Western history … marriage was a private contract between two families. The parentsâ€™ agreement to the match, not the approval of church or state, was what confirmed its validity.
â€¢ In 1215, the church decreed that a â€œlicitâ€ marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.
â€¢ [In the U.S.] until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage.
â€¢ In the mid-20th century, governments began to get out of the business of deciding which couples were â€œfitâ€ to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners. Â¶ But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents.
I have only one beef with what is otherwise a boffo piece, something I take to be an oversight (which is odd, since she closes the piece with an argument for equal access to state marriage rights for gays and straights). She says:
Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married.
I’m guessing Coontz is presuming biological parentage, and that it would be this that establishes the parental rights and responsibilities. But biological parentage is far from presumptive in LGBT families. Except in the cases in which one female partner has donated an egg to another, who carries it to term, every other LGBT family only has at most one biological parent; a great many have none. (Surrogacy and co-parented families are ones in which one gay dad in a couple may have biological parentage, but that’s obviously not the case for his partner.)
So far as I know, children who are born to lesbian and gay parents are indeed denied the inheritance rights, parental support, and legal standing vis-a-vis their non-birth parent, unless (or until) that parent is able to adopt them. In only one state in the nation is what’s called “second parent adoption” (in which a non-birth parent can adopt their partner’s birth child) expressly protected by statute and ruling; another smattering of states permit it by statute or by appellate trial court ruling. Second parent adoption in nearly half the nation lies in either untested waters, or is expressly prohibited (check the Task Force’s May 2007 map of Second Parent Adoption in the U.S. [downloads PDF]).
And it’s not as if the bind is only on parental rights and responsibilities for the non-birth parent in a gay family which formed through conception and birth. A number of states expressly prohibit gay adoption (here’s the Task Force’s September 2007 map: Adoption Laws in the U.S. [downloads PDF]).
Once before when I mentioned my own adoption process (long-since finished with kid#1 — yahoo! — but just in its rosy-fingered dawn for kid#2), I appreciated the schooling and sharing from folks in the comments. My legal know-how is next to zip, and the law, of course, varies widely from state to state. I am grateful for corrections or additions and, as ever, for your thoughts.