By Nancy Polikoff
Professor of Law
Washington College of Law, American University
The New Jersey Supreme Court has given the state Legislature a historic opportunity, and I don’t mean the chance to allow same-sex couples to marry.
The Legislature has the chance to enact civil unions for all couples – same-sex and different-sex. New Zealand does it. So does the Netherlands, under the name “registered partnership.” Maine and the District of Columbia recognize “domestic partnerships” for both straight and gay couples, although both give domestic partners fewer rights than those accorded married couples. Even New Jersey’s current domestic partnership law allows different-sex couples to register – but only if both partners are over 62, presumably a nod to the impact of remarriage on certain pension and retirement benefits.
Civil unions for all couples acknowledge that there is meaning in the word marriage, and that it has a dark side. Marriage once made women entirely dependent on their husbands by not allowing wives to own or control any property, including the money they earned. The first wave of the feminist movement, in the mid-19th century, is associated primarily with the fight for women’s suffrage, but Elizabeth Cady Stanton remarked that the women who attended her speeches were most enthusiastic about her critique of marriage.
Until the 1970s, remarkably little changed. A husband had the right to decide where the family lived and a wife was required to take her husband’s surname. A husband who forced his wife into sexual intercourse committed no crime.
After widespread protests in the mid-20th century against the second-class status of women, the Supreme Court finally began dismantling explicit sex discrimination. But today’s equal legal status of husbands and wives obscures continuing power imbalances. A husband’s higher earning power virtually assures that the couple will live where he gets work; the vast majority of women change their names at marriage; violence against women continues unabated.
Religious marriage and legal marriage are distinct entities. In some denominations the subservience of the wife to her husband is an explicit component of her marriage vows, even though the law won’t enforce that promise. Different-sex couples might choose civil union over marriage to distance themselves from the religious connotation attached to marriage.
It’s reasonable to hope that someday couples seeking a legal status will go to a county building for a civil union, and those seeking a religious status will go to a house of worship. A couple seeking both would make two stops.
Some advocates for gay and lesbian couples in New Jersey are demanding that the Legislature give them marriage, not civil unions, because a separate status for same-sex couples is discrimination. They’re right, but it’s discrimination that works both ways. Different-sex couples who want recognition for the family they form should be able to reject the word marriage in favor of a phrase with less baggage. And they shouldn’t have to be over 62 to do it.
The Council on Contemporary Families is a non-profit, non-partisan organization dedicated to providing the press and public with the latest research and best-practice findings about American families. Our members include demographers, economists, family therapists, historians, political scientists, psychologists, social workers, sociologists, as well as other family social scientists and practitioners. Founded in 1996 and based at the University of Miami, the Council’s mission is to enhance the national understanding of how and why contemporary families are changing, what needs and challenges they face, and how these needs can best be met.
To learn more about other briefing papers and about our annual April conferences, including complimentary press passes for journalists, contact Stephanie Coontz, CCF’s Director of Research and Public Education: firstname.lastname@example.org.