this might be because Iām a family law lawyer and also an old crone who remembers when marriage equality wasnāt a thingĀ (as in, marriage equality only became nation-wideĀ two months before I went to law school), but I have Strong Feelings about the right to marry and all the legal benefits that come with it
like Iām all for living in sin until someone says they donāt want to get married because itās ~too permanent~ and in the same breath start talking about having kids or buying a house with their significant other. then I turn into a 90-year-old passive-aggressive church grandma who keeps pointedly asking when the wedding is.Ā āyes, a divorce is very sad and stressful, but so is BEING HOMELESS BECAUSE YOUāRE NOT ENTITLED TO EQUITABLE DISTRIBUTION OF MARITAL PROPERTY, CAROLINE!ā
āoh, he thinks a piece of paper shouldnāt define your relationship? ASK HIM HOW HE FEELS ABOUT BEING ON YOUR BABYāS BIRTH CERTIFICATE, PATRICIA.ā
āoh, sure, itās all fun and games until your estranged parents are making medical decisions for you and inheriting all your property, TIMOTHY.ā
so, Iāve gotten this question and similar ones before, and I want to use it to go into what marriage actually is.
so, in law, there are a couple of legal assumptions made when someone is a close family member, like a parent. the assumptions are that this person knows you well enough to make decisions on your behalf in an emergency, supports or is supported by you financially, and, most importantly, that they are emotionally significant to you in a way that makes them different from a total stranger or a good friend. immigration law, for example, prioritizes families over people immigrating for jobs alone, because not getting a job doesnāt have the same emotional weight as never seeing your mom again.
the difference is that you donāt get to choose your family (outside of adoption and, uh, legally thatās not a bilateral decision). you do get to choose your spouse. the fact that you chose them is why they get priority for things like inheritance and immigration, even over your parents or your siblings or your grandma.
how does the government know that this particular person is someone you want to have as part of your family? you fill out a form and you tell them.
what happens if you donāt want them in your family anymore, and donāt want those assumptions made about them? you fill out a different form and you tell the government that.
the thing I think thatās hard for people to wrap their heads around ā whether youāre a starry-eyed romantic or a pragmatic bitch like me ā is that marriage isnāt an announcement of how much you love someone. thatās what a facebook status update is for. you do not need to be in love, or sexually/romantically monogamous, or be religious, or any of the other things people associate with marriage, in order to be married.
itās a legal decision. it is choosing to get certain benefits (like taxes, because itās assumed youāre financially supporting each other) in exchange for certain responsibilities (because itās assumed youāre supporting each other, it stops mattering exactly who bought what after you got married, so divorce splits the whole pool of stuff even if one person bought like 75% of it).
you donāt get the one without the other, and you donāt get either if you donāt affirmatively say thatās what you want to have happen. it doesnāt happen automatically, or in every romantic relationship no matter how serious, because the choice is the point.
and, to be clear: if you do not want, or do not care about, the legal rights and responsibilities of being married, you should not get married. itās a fucking legal contract that has serious legal implications! itās not something you should be doing for funsies!
tl;dr: if you want all the shit that comes with a marriage, good and bad, you need to tell the government thatās what you want. if you donāt want it, then you donāt need to do it, but you need to also be aware of what youāre potentially losing (in exchange for what youāre keeping). that should be an informed decision, not one you make for emotional reasons like āI just want everyone to know Iām only having sex with this person foreverā or āour love is so pure it transcends legal boundaries.ā
Is there any option other than marriage for telling the government you want this person to be part of your family? Like, can you draw up some kind of homebrew contract?
Short answer: No. If there was, queer people would have done it already.
Long answer: Thatās a little like asking ācan you become a citizen via contract rather than going through the immigration and naturalization process?ā Marriage is a legal status: you either are or you arenāt. Can you cobble together very specific stuff, like advanced healthcare directives and wills and whatnot? Yes, absolutely. But anything that requires you to be legally married as a status cannot be contracted away: you canāt file taxes jointly or sponsor someone for a green card or get someoneās Social Security benefits if they die if youāre not married to that person.
Now, to be clear: some things that often require marriage do not always require marriage. For example, usually you need to be married to have someone unrelated to you be on your health insurance, but my jobās specific health insurance plan allows coverage for domestic partners, which they define as a single person who has cohabitated with you for six months or more and is in a committed relationship with you. So even though my fiancĆ© and I are not married yet, heās been on my health insurance for the past year and a half, because we hit the six month mark of living together right around when I had to re-enroll in my health insurance for the year.
But if weād gotten married sooner, heād have been able to get on my health insurance right away (getting married is a qualifying event that lets someone get on a health insurance plan outside of the enrollment period), but since heās just a cohabitating partner, we had to wait six months for him to get on my insurance. And if heād moved in with me a month later, weād have to wait a whole year before he could enroll with me on my health insurance. Even though itās allowed, it still doesnāt have the same standing as a marriage.
I guess technically adult adoption is an option, in that it is what queer people did for a while in lieu of marriage, but itās a bad idea for a lot of reasons (not least of which being that you can divorce a spouse but you canāt undo an adoption).
this, THIS is why QPR make me so fucking nervous. iām not trying to shit on your beautiful poly aroace love affair, iām asking you HOW WILL THIS RELATIONSHIP HOLD UP IN COURT. cause, news flash: it wonāt.
if you have shared bank accounts and a house and a kid with someone who isnāt married to you, they can wipe you out ā legally speaking ā and you have no recourse. none. you will never see your kid again, unless youāre lucky and contributed half their DNA.
if they have a car accident and end up in hospital, you donāt have a legal right to see them. if theyāre in a coma, their parents can pull the plug and adopt that child and you can do nothing.
queers wanted marriage equality not to Be Like Teh Hets, but because it is the most legal protection you can ever have against that bad stuff that comes (and it comes for everyone).
if you donāt have that stuff, if youāre relying on your partners to do the right thing forever and be perfect people and never have a business collapse or a messy family situation or an accident or even to get sick ā¦ youāre being really, really naĆÆve.
Pre-legal-gay-marriage, I sawĀ this happen. Ā I was on a parenting board and one day a woman weād posted with for years told us her partner and one of their children had died in a car accident. Ā And because sheĀ wasnāt the biological parent of the surviving child ā the child sheād been a parent to since conception ā her exās parents took custody and took the child away and kept her from seeing that child. Ā Ever.
Because hereās the thing: children are not property. Ā Specifically, in estate law, children are not, and cannot beĀ āReal Property.ā Ā You cannot bequeath them like furniture, books, and bank accounts. Ā Ā
āBut my will states who I want as guardian!ā Ā You say. Welp. Ā That statement is, in law, only a (strong) suggestion. Ā A judge still still have to rule on guardianship of your minor child, and you cannot, from the grave, dictate where they end up. Ā
Again: Children are not real property. If you are not their biological or legal parent, the state can remove them from your custody and hand them to someone more closely related, or not related at all but merely less gay, less queer, lessĀ āinappropriateā by your stateās legal standards.
The woman I knew back then was on good term with her not-quite-in-laws. Or thought she was. Ā Because as soon as her partner died, their tune changed 100%, they found anti-gay legal support, and they took that womanās child from her. Ā Forever.Ā
Thatās not my onlyĀ āmy outlaws are great and fine with us and its okay weāre not legally marriedā story, but itās probably the most heartbreaking. Ā Though the image of a man who has just lost his partner of 25 years watching his ex-outlaws take Ā½ of his chairs, Ā½ of his pillows, Ā½ of his sheets, Ā½ of his napkins, Ā½ of his towels, Ā½ of his dishes, Ā½ of his booksā¦.. is pretty fucking close. Ā After they made him sit behindĀ āthe familyā at his partnerās funeral.
My mother was a lifelong Republican, a very conservative Catholic. The thing that pushed her over on legalizing gay marriage was stories about people being in the hospital and their partner of 20 years not being allowed to see them, because they werenāt legally married. She thought that was wrong and unfair.Ā
Also a reminderĀ āget marriedā does not meanĀ āhave a wedding.ā You can file the paperwork and get married in a courthouse or office. There doesnāt even need to be a ceremony, you just have to sign some papers. (Bonus: you get access to the legal privileges of marriage as well as the protections, AND you get to stick it to the billion dollarĀ āwedding industryā that preys on us all.)
Yeah. It was like this.
Thatās what Republicans want back with their Federalist Society court.
They also want to make us illegal again.
Yeah. Like we were before 2003 in 19 states. For fucking EXISTING.
Thatās what they want.
Marriage IS the contract that tells the government you want this person declared family.
