Reflecting on The Way to Win Marriage Rights from the Perspective of Roe v. Wade

05/21/09 Gender and Sexuality Law Blog:

Columbia University law professor Katherine M. Franke favors a position that she calls "disestablishment of marriage": if marriage "can’t be had on fair terms, states shouldn’t be in the business of providing it." She appears to support an equivalent alternative to marriage that the state would recognize - a civil institution in which both same-sex and opposite-sex couples, among other family relationships, have all the rights, benefits, and duties of marriage. (For example, she welcomes a version of this proposal that that the Domestic Partnership Initiative represents, even though she prefers the state legislature to enact it.)

I have already expressed a misgiving about the ambiguity surrounding her use of "disestablishment" to characterize her idea. Disestablishing marriage appears to imply acknowledging that it is exclusively a religious institution that should have no element of state recognition. This sense of "disestablisment" represents a version of the marriage-alternative proposal that Pepperdine University law professors Douglas Kmiec and Shelley Ross Saxer have recently advanced here and here. During the Prop. 8 oral arguments, Justice Ming Chin had asked Kenneth Starr whether the Kmiec-Saxon proposal would provide equal protection to same sex couples, and whether the Court could order it. Franke, however, acknowledges the cultural values of dignity and respect that gays and lesbians, no less than straights, associate with marriage, whether or not the association has religious underpinnings. And, as I understand her, she believes that not just married couples, but other family relationships - including partners in committed relationships - deserve the same rights and benefits of marriage.

On May 7th, Franke participated in NY City Bar Association panel on legalizing same-sex marriage. In her latest post, she responds to criticism of her view that two legal arguments advanced for same-sex marriage risk precluding defense of the marriage-alternative proposal. These are the arguments that substantive due process makes the right to marry fundamental, and that same-sex couples have the same dignity interest in marriage that opposite-sex couples have. She faults these arguments for their (unintended) consequences, just as she faults the effect on impoverished women of the limitations of the privacy argument for Roe v. Wade:

The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community.

Nevertheless, Widener Law Professor John Culhane has already explained why the equal-protection argument that Franke accepts depends on the dignity argument that she rejects.