Before Marriage: The History of Nonmarital Recognition and Its Impact on Marriage

Works-in-Progress Series 

Featuring Douglas NeJaime
Associate Professor of Law Loyola Law School, Los Angeles

Tuesday, January 29, 2013
12:20-1:40 pm
UCLA Law, Room 1314
*Lunch Provided

Click here to RSVP or call (310) 267-4382.

Click here for a paper draft.

Abstract: The organized lesbian, gay, bisexual, and transgender (LGBT) movement did not officially enter the marriage fray until the 1990s.  The Hawaii Supreme Court’s surprising 1993 decision in Baehr v. Lewin,  holding that the state marriage law classified based on sex and thus must be subjected to strict scrutiny under the state constitution, unleashed the issue of same-sex marriage onto the national legal and political scene.  LGBT movement advocates had to respond, both to same-sex couples’ desire to litigate and to the powerful countermobilization seeking to legislate and constitutionalize marriage prohibitions.   The modern marriage equality movement had begun, and in 1999 and 2003 movement lawyers recorded landmark victories in Vermont (civil unions) and Massachusetts (marriage), respectively.  But long before Hawaii, Vermont, and Massachusetts, many LGBT advocates were building the case for marriage equality that we see today.  They did so by working explicitly outside of marriage.

In this talk, NeJaime shows how LGBT advocacy in the 1980s and early 1990s aimed at nonmarital recognition and support, specifically through the concept of domestic partnership, produced an image of same-sex couples as marriage-like and, at the same time, contributed to a model of marriage capable of accommodating same-sex couples.  Marriage constructed the terms of nonmarital recognition in ways that signaled both the regulatory reach of marriage and the blurring line between married and unmarried relationships.  Same-sex couples earned nonmarital support by stressing their fulfillment of certain marital norms – norms that reflected progressive changes produced by other movements and shaped by broader demographic shifts.  Advocates emphasized adult romantic affiliation and emotional and economic interdependence over procreative sex and dual-gender childrearing.  Ultimately, while working outside of marriage – indeed, resisting challenges to marriage laws – advocates seized on and shaped evolving marital norms in ways that reflected lesbian and gay family life.  Of course, some advocates sought to destabilize marriage and rejected a vision of LGBT advocacy that included marriage recognition.  Yet ample evidence shows that a significant strand of LGBT advocacy in the 1980s and early 1990s valued same-sex couples’ right to marry.  Advocates and many of their constituents understood lesbian and gay relationships as marriage-like and viewed marriage as an ultimate goal that was simply unrealistic at the time.  Moreover, whether advocates liked it or not, marriage structured the field in ways that constrained their choices and cast nonmarital recognition in marriage-like terms.  Accordingly, for both normative and strategic reasons, many advocates accepted marriage’s dominance.

By exploring this earlier era of nonmarital advocacy, NeJaime argues that we can better understand the current moment.  In the 1980s, advocates argued that same-sex couples deserved recognition through domestic partnership because they formed loving, committed relationships characterized by mutual emotional support and economic interdependence.  Today, advocates argue that same-sex couples deserve recognition through marriage for much the same reason.  LGBT advocates did not simply latch onto this contemporary model of marriage when they began to litigate marriage claims.  Rather, they joined other late twentieth-century social movements in directly contributing to and producing that model.  Yet unlike these other movements, LGBT advocates did so by working exclusively outside of marriage.

Bio: Douglas NeJaime is Associate Professor of Law, Loyola Law School, Los Angeles. He teaches in the areas of family law, law and sexuality, and legal ethics.  In 2011, he received the Excellence in Teaching award from the graduating class.  NeJaime’s research focuses on law and social movements, cause lawyering, and sexual orientation discrimination.  His most recent scholarship has appeared or is forthcoming in the California Law Review, Michigan Law Review, UCLA Law Review, Iowa Law Review, Fordham Law Review, and Emory Law Journal.  He is a two-time recipient of the Dukeminier Award, which recognizes the best sexual orientation and gender identity legal scholarship published in the previous year.  NeJaime has provided commentary on issues relating to sexual orientation and same-sex marriage to numerous press outlets, including the New York Times, L.A. Times, NPR, and NBC News. NeJaime is a former Sears Law Teaching Fellow at the Williams Institute. He is a graduate of Harvard Law School and Brown University.