License to Wed

What Legal Marriage Means to Same-Sex Couples

Kimberly D. Richman

• Publisher: NYU Press
• Year: 2013
• ISBN:
  9780814724224
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

A critical reader of the history of marriage understands that it is an institution that has always been in flux. It is also a decidedly complicated one, existing simultaneously in the realms of religion, law, and emotion. And yet recent years have seen dramatic and heavily waged battles over the proposition of including same sex couples in marriage. Just what is at stake in these battles? License to Wed examines the meanings of marriage for couples in the two first states to extend that right to same sex couples: California and Massachusetts. The two states provide a compelling contrast: while in California the rights that go with marriage—inheritance, custody, and so forth—were already granted to couples under the state’s domestic partnership law, those in Massachusetts did not have this same set of rights. At the same time, Massachusetts has offered civil marriage consistently since 2004; Californians, on the other hand, have experienced a much more turbulent legal path. And yet, same-sex couples in both states seek to marry for a variety of interacting, overlapping, and evolving reasons that do not vary significantly by location. The evidence shows us that for many of these individuals, access to civil marriage in particular—not domestic partnership alone, no matter how broad—and not a commitment ceremony alone, no matter how emotional—is a home of such personal, civic, political, and instrumental resonance that it is ultimately difficult to disentangle the many meanings of marriage. This book attempts to do so, and in the process reveals just what is at stake for these couples, how access to a legal institution fundamentally alters their consciousness, and what the impact of legal inclusion is for those traditionally excluded.

1
Introduction

Situating the Meanings of Marriage

In a small, little-known museum amid the storefronts on a side street of one of the United States’ most famous “gay-borhoods,” stands an odd display: among the political signs, photos, handbills, and other historical paraphernalia are two women’s pantsuits, one a vibrant turquoise blue and the other a deep shade of lilac. The outfits are unremarkable in most ways and would be equally at home in the aisles of JC Penney. But here in the Castro district of San Francisco, in the GLBT (Gay, Lesbian, Bisexual, and Transgender) History Museum, these pantsuits are instantly recognizable: they are relics of history, having been donned by two octogenarians and captured in photographs instantly beamed around the world. These pantsuits are the wedding attire of Phyllis Lyon and Del Martin, founders of the lesbian rights movement and, later, emblems of marriage equality in the United States, as the first same-sex couple to be married in San Francisco City Hall in February 2004, and again in June 2008. Although their 2004 marriage, performed at the invitation of then-mayor Gavin Newsom and under the watchful eye of a close coterie of City Hall officials and lesbian, gay, bisexual, and transgender (hereafter, LGBT) rights figures, would eventually be annulled along with the other 4,036 licenses obtained that winter, the image of their first putative moment as spouses—heads leaned together and a knowing, contented gaze into each other’s eyes—became synonymous with the movement that it helped to propel. It is no accident that when they did become legal spouses in 2008—after more than a half-century together and a successful litigation process—they did so in the very same building, wearing the very same pantsuits, by now having cemented their place in history.

That the image of marriage equality embedded in many people’s minds would be a couple who did quite well as life partners before marriage came along—in part because of their own and others’ activism on behalf of LGBT individuals everywhere—is striking in a few ways. Phyllis Lyon and the late Del Martin, by this point in their lives—having survived decades of societal ignorance and anti-gay bias, and inspiring countless others to activism—lived comfortably in San Francisco’s idyllic Noe Valley neighborhood. They were long since established as a couple to those who knew them, and they had never sought to be married. Their only child, Del’s daughter from a prior marriage, was a grown woman with children of her own. As Lyon commented at the time, “We were happy to be able to do it, to show that it was do-able. But it’s not going to make a lot of difference in our lifetime.”¹ This couple differed in many ways from the namesakes of the Massachusetts case legalizing same-sex marriage just months before in November 2003, Hilary and Julie Goodridge. They had a young child together and had no other secure and comprehensive way to legally bind themselves to one another under state law. All four women no doubt benefitted in very real, tangible ways when they were finally recognized as legal spouses. But none took the plunge—a far steeper and more closely scrutinized one than the average couple getting married—for only that reason.

In this book I examine the significance of legal same-sex marriage for those couples seeking it in Massachusetts and San Francisco—the first two jurisdictions to offer it. The two settings, though alike demographically in some ways as coastal, historically Roman Catholic, and traditionally liberal enclaves, provide an important set of contrasts for the study of same-sex marriage and the impact of new rights on historically marginalized citizens. Most obvious of these was the process to obtain these rights and their legal longevity. While the 2004 San Francisco marriages were the result of an act of defiance on the part of a local government and its officials, never gained the authorization of the state, and were ultimately successfully challenged in court, the Massachusetts marriages were solidly legal from the start—having been authorized by the highest law of the land in that state, the Massachusetts Supreme Judicial Court. Although attempts were made subsequently to ban same-sex marriage by constitutional amendment, this effort never gained enough traction to change the legal landscape in Massachusetts. The couples in San Francisco, having been through the roller coaster of receiving marriage licenses from their county only to have them annulled six months later, were again given the opportunity to marry—this time fully legally—in 2008. And again, six months later, they watched as the voters banned any future same-sex marriages in their home state. This time, at least, after additional litigation, couples were allowed to keep their marriage licenses. So tortuous was the path that a major California newspaper ran an ad, featuring a set of male newlyweds, with the caption: “Married. Unmarried. Married. Everything Changes, Every Day.” An additional aspect of the legal landscape, which bears repeating here, is the existence of a statewide Domestic Partnership law in California. This law carried many of the state-level rights of marriage in 2004 during the initial weddings, and nearly all of those rights by 2005 when the couples were interviewed. No such law existed in Massachusetts. This distinction in legal status between the two populations—not to mention the experience the San Francisco couples had of being given a right only to have it rescinded—are important points of contrast that help to broaden the scope of inquiry and illustrate the multifaceted significance and impact of legal rights, and their absence, on these citizens.

What is it about same-sex marriage that proves so compelling that partisans on either side are willing to stake millions of dollars on advancing their positions on it? Why are couples who have no particular desire or need for the protections it offers—an incomplete set of protections since they were not recognized at the federal level—willing to go to great time investment, legal, and even geographical lengths to pursue it? And what is it about same-sex marriage that its approximation in both ritual form (through commitment ceremonies) and legal form (through civil unions) is for many couples somehow not the same? These questions strike at the heart of one of the most enduring themes of law and society scholarship—the relationship between legal institutions and social relations as well as personal consciousness—in the context of what is perhaps the most hotly contested social and political issue of the early twenty-first century.

I wrote this book during a particularly eventful period in the evolution of legal same-sex marriage in the United States. Only weeks before its completion, President Barack Obama, after three years of avoidance, became the first sitting president to publicly state his support for the right to same-sex marriage. The reasons he cited for his shift, mainly conversations with his family and interaction with his daughters’ friends’ same-sex parents, were notably personal rather than exclusively legal or political. At the same time, it was a decidedly political move in its way and had the potential to indirectly shift the legal landscape—and indeed, the landscape did shift dramatically just over a year later, when the U.S. Supreme Court invalidated both Prop 8 and the Defense of Marriage Act. The multiple dimensions of these events foreshad-owed an important element of the focus of this book. License to Wed is not the first to document the legal consequences of same-sex marriage (or its denial), the politics of the debate, nor the social or emotional dimensions of such a ritual of commitment for same-sex couples. By examining both the motivations and the reactions of couples who married in two distinct locales in the early years of legal same-sex marriage in the United States, however, it takes as its subject the intersection of these various elements: the legal, the social, the political, and the personal. In analyzing same-sex couples’ reasons for seeking legal marriage (as opposed to another form of legal relationship recognition, such as domestic partnership, or a non-legal wedding ritual, such as a commitment ceremony), we gain a window onto the couples’ legal consciousness—in other words, how they orient to, understand, and use the law. Combining these narratives of motive and orientations to law with a look at the perceived changes couples and individuals report as a result of legal marriage tells a compelling story about the effects of inclusion in—and exclusion from—the institution of marriage. Taken together, these insights offer a unique perspective on both the newest twist to an old institution, and the social significance of legality and rights more broadly.

Description of the Study

Rather than relying on secondhand accounts or briefs filed by legal advocacy organizations on either side of the debate, the explicit aim is to engage the words of the couples themselves in discovering and clarifying the personal, symbolic, material, and legal relevance of marriage for them, the meanings it evokes for them, and its effects on their lives. With that in mind, the analysis here is based on two forms of original data: (1) a database of 1,467 surveys (including both quantitative and open-ended qualitative questions) of same-sex couples married at San Francisco City Hall during the Winter of Love in February and March 2004; and (2) one hundred semistructured, in-depth interviews with same-sex couples married in San Francisco and Massachusetts (fifty in each locale) between 2004 and 2007.² The surveys were mailed in early 2005 to every same-sex couple who registered a marriage license at San Francisco City Hall from February 12 to March 11, 2004, based on a list of public marriage licenses available through the San Francisco assessor-recorder’s office, obtained via the advocacy group Marriage Equality California. Approximately 40 percent of the more than four thousand surveys were returned at least partially completed, although some of these were excluded due to excessive missing data. These anonymous surveys included demographic data (such as gender, age, race, religion, residency, profession, income, and family size) as well as attitudinal data (such as the couples’ political orientations, reasons for wanting to get married, and reactions to the annulment of their licenses). The raw data from the survey were coded and entered both in qualitative and quantitative form in a comprehensive database, with particular attention paid to include verbatim any comment or qualification a participant might have added to his or her answers. Although the unit of analysis was the couple, space was provided on each survey for both members to include their own demographic information and feedback. Therefore, in the relatively rare cases that couples had vastly differing motivations for marrying, they were able to indicate this in their comments on the survey, which were in turn recorded in the database. Those questions I deemed the most analytically important, such as couples’ motivations for marrying, were asked in multiple ways—both as closed-ended Likert-type ratings on a one-to-five scale, and in open-ended qualitative questions—in order to triangulate the results and increase reliability. Once all of the information was gathered, entered, and coded, the survey data were analyzed statistically, primarily descriptively but also in some cases with simple correlational tests.

A brief descriptive snapshot of the surveyed couples, based on this data, reveals a population that was not dissimilar demographically from what we know about the overall population of those who married in San Francisco in 2004—and along several dimensions, with what we know about the overall same-sex married population in California.³ These demographics depict a stable, professional, older set of people, largely female, with long-standing relationships. Of the more than 2,900 respondents included in the 1,467 surveys returned, ages ranged from twenty to eighty-two, with the average age being forty-four. This is significantly older than the average age of heterosexual couples at the time of marriage (twenty-seven for women, twenty-nine for men). Couples had been together anywhere from three months to forty-seven years (with an average of eleven years)—much longer than the average heterosexual couple before they marry (for obvious reasons, due to their previous lack of access to the institution).⁴ Household income ranged from $10,000 per year to $1.8 million per year, with an average combined income of $140,000 per year. Forty percent of these couples were male, 59.5 percent were female, and 0.5 percent identified as “other” or transgender.⁵ Thirty-six percent of the couples had children (anywhere from one to eleven per family).

These marriages were largely a Caucasian phenomenon, with 88 percent of respondents identifying as such (the second largest racial identification was Latin@ or Chican@ at 4 percent, followed by mixed race, at 3.5 percent).⁶ The range of their educational attainment was from eighth grade to postgraduate and higher (e.g., a PhD and JD or other advanced degree), with an average educational attainment of seventeen years of schooling—equivalent to a four-year bachelor’s degree. Although the majority of married people lived in northern California (nearly 73 percent), couples also came from twenty-seven states as well as one foreign country (Nicaragua), mainly from urban areas. Perhaps predictably, a little under half (43 percent) identified as agnostic or atheist, while the largest single religious affiliation was Christianity or Unitarian at 22 percent (this included all Protestant denominations and such gay-inclusive churches as the Metropolitan Community Church (“MCC”), as well as Unitarian/Universalists). Significantly, 70 percent were already registered domestic partners either in the state of California or their home state, and 55 percent had already had (non-legal) wedding or commitment ceremonies on their own.⁷ This meant that most of the couples seeking legal marriage already had access to the rights associated with marriage (at least at the state level), and many had already experienced the ceremonial aspect of marriage.

For the second phase of the research, interviewees were recruited in a number of ways. In San Francisco, they were primarily recruited via the survey; in an optional last page of the otherwise anonymous survey, they were given the opportunity to fill in their name and contact information for consent to be contacted for an interview. A few remaining couples in San Francisco or in the Bay Area were recruited via word of mouth. In Massachusetts, interviewees were initially recruited through advertisements in a major LGBT newspaper in Massachusetts as well as through references from San Francisco couples. Subsequent couples were recruited by a combination of snowball sampling and mailings, with the assistance of one of the major same-sex marriage advocacy organizations in the state as well as some of the county clerks in heavily LGBT areas of Massachusetts. The demographic characteristics of the interviewees were slightly more evenly distributed than in the survey but were still skewed toward a largely middle-class female, Caucasian population: 55 percent were female, 75 percent were white, 23 percent were interracial, one couple Latina and one Asian American.

The one hundred interviews occurred after the original 2004 San Francisco marriages were invalidated by the California Supreme Court and before the same court’s later decision to legalize same-sex marriage in 2008.⁸ This allowed the respondents from San Francisco to reflect on not only the experience of having received a marriage license but also having had it rescinded. Admittedly, it may have also led them to color their reflections on their initial marriage in light of subsequent events. However, most couples, when pressed in the interview, were able to parse out what had been their thoughts and motivations at the time and how their thoughts had evolved in the time since. The elapsed time also had the benefit of ensuring that these couples—interviewed in the comfort of their own homes, away from television reporters—did not feel pressure from the advocacy community or anyone else to bias their responses in ways meant to benefit the cause or “greater good.” I also did brief follow-up interviews with those couples in the summer and fall of 2008 in order to find out whether they had subsequently gotten married once it was legalized, and whether their attitudes had changed in the intervening time.⁹ The initial interviews ranged in length from thirty minutes to two hours and fifty-three minutes, with an average of just under one-and-a-half hours. Whenever possible, the interviews were done in person, with both spouses present. All but twenty-seven of the one hundred interviews were conducted in person (with equal numbers from each state occurring in person versus over the phone), and all but nineteen were interviewed as a couple.¹⁰

In an effort to make the Massachusetts interviews as comparable as possible to those in California, I asked the interviewees there for the same demographic and attitudinal information that had been included in the surveys of San Francisco couples, including Likert ratings on a scale of one to five for the various motivations for marrying about which I questioned both sets of couples. In addition, I asked all of the couples about their respective coming-out experiences and about their history as a couple, including how they met, when they moved in together, whether they had ever had a marriage-like ritual of any sort (or even exchanged rings), and about their family configurations. These interviews were then transcribed and searched systematically for analytical themes, especially those relating to the couples’ reasons for getting married, the types of legal consciousness they suggested, and the perceived changes in their relationship—or any other changes—as a result of marriage.¹¹ Some interviewees also provided me with additional materials, including wedding photos, newspaper and magazine articles, their own reflections written at the time of the wedding, and vows, readings, or other portions from their ceremony.

Taken together, these multiple sources of data provide us with a compelling portrait of those same-sex couples seeking marriage—whatever their reason—in the earliest years of its legal existence in the United States. Admittedly, it does not tell us much about the many same-sex couples who choose not to seek marriage, except to the extent that some of the individuals surveyed and interviewed for this study had never expressed a desire to marry before presented with the opportunity and, in fact, had been somewhat hostile to the notion of marriage. Nonetheless, the task of this book is to examine the myriad ways and reasons those who do seek marriage conceive of it, why they choose to pursue it, what it means to them and in their lives, and how varying conceptions of legality are reflected (or not reflected) therein.

Legal Consciousness and the Constitutive Perspective

This book is theoretically grounded in the sociolegal concept of legal consciousness and constitutive studies of the meaning and role of law in social life. Legal consciousness has many definitions, but here it is defined as the way that people understand, experience, engage, use, avoid, or resist law and its manifestations, whether in particular moments or on a regular basis in their everyday lives. This tradition of sociolegal scholarship builds on the foundations of both empirical studies of the legal needs of the poor in the 1960s and 1970s, and the school of Critical Legal Studies, which in the 1970s and 1980s sought to expose and explore the oft-present gap between the “law in the books” and the “law in action.” These “gap studies” revealed that the workings of “law on the ground”—that is, in day-to-day settings, in courtrooms, in workplaces, and in local disputes—were much d...