BLUE PLATE SPECIAL

By WENDY HERDLEIN

A Response To William Eskridge

In his article entitled "The Emerging Menu of Quasi-Marriage Options," Professor William Eskridge urges "traditionalists" to join with the gay rights lobby in supporting same-sex "marriage." Eskridge's objective is to build a coalition that seeks to minimize the number of "quasi-marriage" entrées currently available on what he describes as a "marriage menu."

Eskridge is absolutely right in stating that experimental laws formalizing domestic partnerships and Vermont's civil unions will undermine the institution of marriage. He is also correct that "traditionalists" are troubled by the "quasi-marriage menu" created by gay activists. Fundamentally, however, Eskridge's argument in support of same-sex marriage rests upon an inconsistency that traditionalists cannot accept.

The recent development of domestic partnerships and civil unions and the recognition of other "marriage-like" relationships have been vigorously opposed by supporters of traditional marriage. Eskridge, having endorsed the "menu" concept at every step, changes his position at the end of his article and urges that traditionalists join gay-marriage activists to add yet another item to that menu. Eskridge's article suggests that same-sex "marriage" is the entrée that gay-marriage proponents have sought all along -- with civil unions and the other "quasi-marriage" items being just appetizers.

-- fall short of marriage not because they are called by another name. They fall short because they are, in reality, not marriage.

I. Marriage Isn't A Menu Item

Professor Eskridge suggests that the "marriage menu" has always offered a variety of options for individuals, ranging from friendship to cohabitation to fully-recognized marriage. But marriage is not comprised of a menu, since until very recently, there was no "marriage menu." Individuals were either married or they weren't.

Eskridge's suggestion that dating, friendship and cohabitation are "quasi-marriage" relationships is simply inaccurate. One is not in a "quasi-marriage" merely because the law protects aspects of one's relationship. These types of relationships are no more regulated than any other contractual relationship between total strangers. The status of being "Friends" does not receive any special legal recognition; the same criminal and tort laws apply to enemies. Two people may be friends or dating, yet they are not in a relationship anything like marriage.

Even under the famous California palimony case, Marvin v. Marvin, cohabitants were treated no differently than other contracting parties. There was no legal privilege based upon the cohabiting relationship; the law granted recovery in quasi-contract. The decision was not grounded in a theory of "quasi-marriage" or anything remotely like it. The parties were merely compensated for the effort and services they provided each other, preventing what the law calls "unjust enrichment." These are the very same legal protections that would be afforded to a plumber who agrees to fix a neighbor's garbage disposal in return for reasonable compensation. Such protections are not related to marriage and family, but merely to the individuals' respective promises to one another.

One may enter into many different types of relationships created by law: power of attorney, quasi-contract, donor and beneficiary, and guardian and ward. But these are not marriages, or even "quasi-marriages," just because the law regulates such private relationships.

Eskridge is also incorrect in assuming that the recipe of marriage can be changed without damaging marriage. Marriage is not an institution we have created ourselves, nor can we define it according to our own desires. Marriage predates our legal systems and will not slide neatly into legal fictions. Existing independent of and prior to any governmental system, marriage is this, and only this: an exclusive, lifelong covenant between one man and one woman.

Any modification of that definition -- be it an alteration of a marriage's exclusivity, duration or a joining of the sexes -- is simply not marriage. Defining marriage as a "long-term, mutually committed relationship" is a devaluation of the institution. One could have such a relationship with any of three men or women.

II. Same-Sex "Marriage" As Just Another Menu Item

The suggestion that we embrace same-sex "marriage" as just another dish at the quasi-marriage cafeteria strips marriage of its special role. If the quasi-marriage menu is truly a negative thing, as Eskridge asserts, then government recognition of same-sex "marriage," or the same legal creature by another name simply adds an item to this existing negative menu.

this existing menu? Significantly, the "quasi-marriage" developments have not been at the behest of traditionalists. They have been initiated and vigorously promoted by gay-marriage activists, either through litigation or lobbying. If same-sex "marriage" were created by legislation, would these other options no longer be available for those who wish merely to commit less to their partner? It is not clear to me that this is so. If we are truly concerned that allowing for easier exit from relationships in exchange for fewer benefits will "make marriage less special" (as Mr. Eskridge says), should we not be equally concerned that a menu item of same-sex "marriage" will make marriage less special, as well?

Each of the "quasi-marriage" relationships on the suggested menu is a legal creature based on the archetype of marriage, but each is missing a vital element of what marriage truly is. Each of these distortions threatens the vital elements of the important institution of marriage in one way or another. Same sex "marriages" are no different. They are no less undermining of the institution we seek to preserve than any other variation upon the theme. Ultimately, Eskridge's suggestion that we add another item to a "menu" is inapposite. He is asking in fact that we change the recipe itself. And we can't change the recipe without making marriage less special.

Wendy Herdlein, a member of the California Bar, focuses her efforts on strengthening and protecting the institution of marriage and is Co-Editor of the MarriageWatch web site, which provides information about marriage law to attorneys and the public. She may be reached by e-mail at wherdlein@marriagewatch.org.