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.