Marriage is surely at a crossroad, as the chapters in this volume so richly attest. In fact, marriage may be at more than one crossroad, some pointing toward new, uncharted terrain, others amounting to intersections we have visited before. My principal interest in exploring this dynamic moment in the evolution of the institution of marriage is to better understand why and how today's marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post–Civil War era. I find it curious that the right to marry rather than, say, employment rights, educational opportunity, or political participation has emerged as the preeminent vehicle by and through which the freedom, equality, and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are articulated in and through the institution of marriage? What kind of freedom and what kind of equality does the capacity to marry bring forth?
I write this chapter just as same-sex couples have won the right to legally marry in the state of New York. While there is much to celebrate in this victory, I am concerned that this new form of legal recognition for some members of the lesbian and gay community may come at a cost of rendering more marginalized and vulnerable other forms of family, kinship, and care (Franke 2011). Now that same-sex couples can marry, many employers have announced that they must do so in order to retain benefits to which they had previously been entitled without the legal sanction of the state (Bernard 2011:10–11). “We can now treat you just as we treat heterosexual couples,” they say. “Heterosexuals must marry to gain benefits for their spouses and children, you must now as well.”
Family Law | Law | Sexuality and the Law
Katherine M. Franke,
The Curious Relationship of Marriage and Freedom,
Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First-Century Families, Marsha Garrison & Elizabeth S. Scott (Eds.), Cambridge University Press
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4274