In a well-received Op/Ed piece in the New York Times, Columbia law professor, Katherine M. Franke explains why she considers the New York marriage decision a “mixed blessing.” Why does she say that?

First, Franke is concerned that the decision to allow same-sex couples access to civil marriage in New York will most likely lead to the elimination of domestic partnership status. She sees this as unfortunate because having domestic partnership as an option provides “greater freedom than can be found in the one-size-fits-all rules of marriage.”

Second, Franke does not think people should be “forced” to get married in order to access their partners’ health insurance and other benefits. She believes domestic partnership ought to be an alternative way of accessing benefits for both gays and straights.

Finally, she does not want to “celebrate” the idea of having the state sanction and regulate personal relationships.

A lot of my friends recommended this op/ed piece on Facebook, but I found myself less than convinced by Franke’s claims for a number of reasons. First, while Franke insists that “domestic partnerships and civil unions aren’t a consolation prize made available to lesbian and gay couples because we are barred from legally marrying,” in most cases, that is exactly what they are.

This seems to be the case even in New York City, where Franke resides. According to the City, domestic partnership status is available only to “couples that have a close and committed personal relationship” and who “live together, and have been living together on a continuous basis.” It is not available to anyone who “is married or related by blood in a manner that would bar his or her marriage in New York State.” While it is open to gay and straight couples alike, the status seems to be aimed at those who are living together as if married, rather than alternative domestic configurations.

To give another example, my home state of Delaware just legalized civil unions for same-sex couples precisely because such couples are prohibited from marrying. The new status will provide all the state-level benefits of marriage, but because civil unions have no federal status, none of the federal ones. While I am happy that my relationship will soon have some legal protection in Delaware, I am not happy to be relegated to second-class status. But it was the best we could do politically.

Frankly, if civil unions are not a consolation prize, I don’t know what is.

When the civil unions bill passed, a friend of mine was outraged that as a heterosexual she cannot get a civil union in Delaware, but I couldn’t understand why she would want one. If she was OK with her boyfriend having all the state-level benefits of marriage, I wondered which federal benefits she didn’t want him to have: Federal tax advantages? The right to take family leave to care for her? The right to be in the same nursing home as she? Access to her Social Security survivorship benefits? Exemption from estate taxes? They are both American citizens, so immigration rights would not apply.

While I don’t understand why someone would want all the state but none of the federal benefits, I do understand that some couples might want only some of the benefits associated with marriage and not others. For example, you might want your partner to be on your health insurance but not inherit your estate when you die or to be able to visit you in the hospital but not make medical decisions on your behalf.

If we are going to maintain domestic partnership or civil union as an actual alternative to civil marriage, we probably need to think through what benefits the status would entail. What does not make sense is to create a relationship category that is duplicative of marriage but with a different name. “Just call it something else” seems pointless to me, regardless of whether the suggestion comes from the left or the right.

If the answer is to the benefits question is “it depends on the individuals,” then it might make sense to go with individual contracts instead of creating a separate status. This is especially the case if not that many people would actually want the alternative status, which is suggested by the lack of popularly of civil unions in New Jersey.

Franke’s second point about access to health care, I find more convincing. I totally agree that no one should have to get married in order to provide her partner with health insurance. Access to health care should not depend on being married – or on being partnered. And it shouldn’t depend on the good will of an employer. Access to health care should be something that all human beings are entitled to, period, just because they are human.

Franke’s third point, however, I find puzzling. She says she is lukewarm about marriage because “having [same-sex] relationships sanctioned and regulated by the state” is “hardly something to celebrate,” yet she argues for state-sanctioned domestic partnerships throughout the essay. How would those relationships any less coercive than marriage?

Relationships based on free love do not get state benefits and protections. That is how they remain free. If you want to live off the grid, then live off the grid.

While I find the idea of radically free relationships somewhat enticing, I find Franke’s criticism of state regulation overstated. In this day and age, people have huge amounts of latitude to order their relationships as they want, even within the bounds of marriage. It’s not like “the state” is inside the homes and relationships of married people, regulating how they interact. And frankly, I think playing up fears of state regulation probably doesn’t help build support for a progressive movement.

Franke is absolutely right that “serious, committed relationships can be formed outside of marriage.” But it is also true that liberating and satisfying relationships can exist within the bounds of marriage. I am happy that New York has put us one step closer to justice and do not consider that a “mixed blessing” in any respect.