NeJaime on "The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage"

Douglas NeJaime (University of California, Irvine School of Law) has posted "Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage," which is forthcoming in Volume 102 of the California Law Review (2014). This article came to our attention via JOTWELL, where Carlos Ball (Rutgers School of Law-Newark) has posted his appreciation for it. Here is the abstract:

In the wake of the celebration of the U.S. Supreme Court’s decision in United States v. Windsor, it seems obvious that the LGBT movement is intent on securing marriage. But the relationship between LGBT advocacy and marriage was not always so clear. In fact, before the movement began to make explicit claims to marriage in the 1990s, leading advocates engaged in a vigorous debate about whether to pursue marriage. This debate went beyond mere strategic disagreement and instead focused on ideological differences regarding the role of marriage and its relationship to LGBT rights, family diversity, and sexual expression. Those opposing the turn to marriage urged the movement to continue pursuing nonmarital rights and recognition, including domestic partnership, as a way to decenter marriage for everyone. Critics of today’s marriage equality advocacy point to this history as a lost alternative past worthy of reclamation. Today’s marriage-centered movement, they argue, channels relationships into traditional forms and marginalizes those who fail to fit the marital mold. Instead of continuing down this road, these critics contend, movement advocates should recover their earlier roots and embrace pluralistic models of family and intimacy outside of marriage.

This Article challenges the assumptions that structure today’s debate over the role of marriage in LGBT advocacy. It does so by uncovering the centrality of marriage even during the time when LGBT advocates worked entirely outside of marriage and built nonmarital regimes. Through a case study of domestic partnership advocacy in California in the 1980s and 1990s, this Article shows that the relationship between nonmarital advocacy and marriage was dialogical. Marriage shaped LGBT advocacy for nonmarital recognition, and that advocacy in turn shaped marriage. To gain support for nonmarital rights and benefits, advocates cast same-sex relationships as marriage-like and built domestic partnership in reference to marriage, thus reinscribing — rather than resisting — the centrality of marriage. Yet, at the same time, this nonmarital advocacy contributed to an ascendant model of marriage characterized by adult romantic affiliation, mutual emotional support, and economic interdependence — a model of marriage capable of including same-sex couples.

Revisiting this earlier time in LGBT advocacy sheds light on the current marriage-centered moment. By uncovering how marriage anchored advocacy on nonmarital recognition, the case study demonstrates the difficulty in escaping marriage’s regulatory pull and thereby challenges normative and prescriptive claims pushing away from marriage in LGBT advocacy. And by showing how advocates shaped marriage’s meaning in the space outside marriage, it reveals how nonmarital advocacy built the foundation for today’s marriage equality jurisprudence.

The full article is available here.