For better or for worse?


This article originally appeared in T&S Issue 34, Winter 1996/97.

Lesbian and gay marriage is on the political agenda in many countries. In some European countries — for instance the Scandinavian nations and the Nether­lands — it is already a reality, and this could have implications in future for citizens of other EU member states. In the USA, by contrast, controversy has raged over same-sex marriages which have been permitted in the state of Hawaii, but which other states do not wish to recognise: this is a constitutional issue as well as one of lesbian/gay rights, and its profile in public debates (including the 1996 presidential campaign) is correspondingly high. The marriage debate is less advanced in Britain, where no practical proposals are under consideration, but it recently had an airing in the press, and is under discussion in some gay rights and civil liberties organisations. All in all we are hearing a lot about same-sex marriage, and it seems inevi­table we will hear more. How, though, should radical feminists respond?

The most fundamental argument advanced by supporters of the right of same-sex couples to marry is based on the notion that the current prohibition is a denial of human rights which discriminates on grounds of sexuality or gender. The right to marry and form family units is enshrined in the UN Declaration of human rights; the framers of this document presumably had in mind that slaves, for example, were denied that right, as in practice many migrants still are by inhumane and racist immigration policies (in this area the UK is among the worst offenders). But for lesbian feminists there is obviously a dilemma here. Feminists have long argued that marriage is a cornerstone of the historical and actual oppression of women; ‘marriage resistance’ has been part of feminist politics, certainly in the English-speaking countries, for more than a hundred years. Even if we made no use of it, some of us would be more horrified than delighted to have our right to marry endorsed by a ‘benevolent’ state.

In this article, which we reprint from a recent issue of the feminist publication Broad­sheet, Jenny Rankine looks at the current debate on same-sex marriage in New Zealand, where the law in many areas to do with relationships is undergoing a review, and lesbian marriage itself has been the subject of a test case in court. Her wide-ranging discussion brings out the important point that marriage is not just a symbolic gesture, an economic contract between two adults or a framework for bringing up children, it is always enmeshed in the laws around all kinds of other things, such as immigration, inheritance, taxation and social benefits. Lesbian marriage would be a ‘right’ with complex and far-reaching knock-on effects for lesbians who chose to exercise it, and perhaps for others too.

Because marriage is so bound up with social arrangements more generally, the debate will be somewhat different in different countries, even if certain funda­mental issues of political principle remain constant. In Sweden, for example, all cohabiting couples—married or unmarried, same-sex or heterosexual — are legally endowed with certain rights and responsibilities; at the same time, when it comes to social benefits, members of a couple/household are treated as economic individuals with an independent entitlement to state support (e.g. jobless women whose partners are in work can still receive unemployment pay). This is an impor­tant reason why many (though by no means all) Swedish lesbian feminists will acknowledge certain problems with the concept of lesbian marriage, but come down in the end on the side of ‘having the choice’. As they see it, in one sense they lose nothing by having that choice; in another sense there is no choice, since Sweden’s version of the marital model has been imposed on any and every cohab–iting couple.

In the US on the other hand — a country more or less without a social welfare system — a very significant practical issue is that of health insurance, which is typically accessed through an employer and becomes unaffordable if you are jobless. Married people can get medical treatment on their partner’s insurance policy (which will also cover their children). Since medical cover is both essential and very costly, it is not surprising that this should be perceived as a major form of discrimination against lesbian and gay couples — though legalising same-sex marriage is not the only solution campaigners on the issue have advo­cated. (Radicals would obviously prefer to reform the healthcare system!)

New Zealand’s legal and social arrange­ments are not the same as Britain’s, but not surprisingly given the colonial history of shared institutions they are more similar to ours than those of Sweden or the USA. Jenny Rankine’s analysis of what’s going on in NZ may sound some alarm bells for radical and lesbian feminists here: more positively, however, the author argues that this reopening of the marriage issue could provide an opportunity for feminists to question the whole marital model, with a view to gaining women more indepen­dence and autonomy both within and outside relationships.

New Zealand Justice Minister Doug Graham plans to introduce property rights law to parliament this year for de facto heterosexual and, under protest, same-sex couples. Revision of benefit rules to include same-sex couples is on the way. And six lesbians have taken the state to court to get the right to legally marry.

Marriage and de facto relationship issues haven’t had this kind of airing among feminists and lesbians since the 1970s. And while all these law changes are being debated, drafted and introduced to parliament, feminists have their best opportunity in years to radically boost all women’s autonomy in relationships. I believe the most positive change for women will come from rejecting marriage as a model for all couple relationships, and insisting that the state treats everyone as an economic individual.

Heterosexual resistance to marriage is one of the more obvious social changes during the last generation. Women in de facto relationships in the city of Dunedin were interviewed by Vivienne Scott Melton, who found they did not want to be constructed as ‘wives’ by their partners, relatives or others. They deliberately chose not to get married because they wanted equality and independence in their relationships.

At the same time, benefit rules and other laws have gradually recognised these de facto (‘in fact’ as opposed to ‘de jure’, that is ‘in law’) heterosexual relationships. The marriage model of one wage-earner supporting a depen­dent care-giving partner has been extended to ‘relationships in the nature of marriage’.

Lesbians have also moved slowly towards visibility in family law, partly on the coat tails of heterosexual de facto couples and partly because of the Human Rights and Bill of Rights Acts. The full weight of these two Acts will not be felt until the year 2000, which is the govern­ment’s deadline for removing discriminatory provisions from pre-existing laws.

Yet despite all the legal changes hovering in the wings, lesbians have barely begun to discuss how they want the law to treat them. The personal campaign for the right to marry waged by three lesbian couples has galvanised this major debate in New Zealand lesbian communities.

A test case

The lesbian High Court case was argued by human rights lawyer Rodney Harrison in April 1996. If the lesbians win the government will probably go to the Court of Appeal. Auckland barrister Errolyn Jones believes lesbian mar­riage is such a fundamental change to common law that the appeal may go all the way to the Privy Council. Whatever the outcome, the case will generate more lesbian visibility and debate about what marriage means in the 1990s.

The couples in the case were testing the 1955 Marriage Act against the Bill of Rights. The Bill includes the right to be free of discrimi­nation on the grounds of sexual orientation. If existing laws don’t specifically discriminate — the Marriage Act does not specify partners’ gender — then the courts have to interpret them consistently with the Bill. At the moment it is not the Act but the bureaucrats at registry offices who are effectively prohibiting lesbian marriage.

Hamilton lawyer Ruth Busch says the case is straightforward, and the only logical conclusion is that the three couples should be able to marry. However, the judge could decide that politicians should resolve the issue and duck the irresist­ible legal argument. ‘If that happened, I would be asking what are the rest of my rights under the Bill of Rights Act worth?’ says Ruth [see update at the end of this article].

A radical challenge?

To the christian right, who regard marriage as the core of their patch, the possibility of same-sex marriage is a major attack. However, many people share their ideal of monogamous marriage as the only valid environment for successful child rearing and positive family values. To assert that lesbians raise well-adjusted children and create valuable new kinds of families is a radical challenge to the ideas of ‘marriage’ and ‘family’. Many feminists live their relationships as conscious alternatives and challenges to marriage. If lesbians argue for same-sex marriage by saying ‘we can’t help it’ or ‘we’re just like you’, the radical potential of these challenges is undermined.

In an internet debate on the issue, law professor Barbara Cox asked, ‘what is more anti-patriarchal…than clearly stating that women can commit to one another with no man in sight?’ Lindsay Quilter and Margy Pearl, two women whose relationship is at issue in the legal test case, argue that legal lesbian marriage invalidates the concept of male ‘ownership’ of women and overturns patrilineage, that is inheritance through the male line. The English lesbian psychologist Celia Kitzinger believes marriage would have to change if dykes did it. ‘You can’t simply add lesbians to institutions developed by heterosexuals and leave the institutions unchanged’, she says.

While I share some of these views, I don’t agree with some lesbians’ assumptions that legal recognition of their relationships must automatically be good for lesbian communities. When the government wants to push as many women as possible into economic dependence on their partners, I cannot see lesbian pressure to be included in marriage as merely a personal ‘choice’ or a simple human rights issue.

Human rights: a limited lever?

From a radical feminist point of view, ‘human rights’ is a very limited lever for change. In New Zealand law only individuals have human rights, not groups. There is no provision for class action suits. Change to many exploitative situations relies on some gutsy person with enough money and privilege to survive two years of harassment or unemployment while their case chugs slowly through the Human Rights Commission process.

The law also protects everybody from every kind of discrimination, ignoring structured inequalities. So the Commission gets as many or more complaints from Pakeha [white New Zealanders] about Maori ‘racism’ and from men about women’s ‘sexism’ as the other way around. The Act protects the rights of hetero­sexuals and bisexuals against discrimination on the grounds of sexual orientation, which makes women and lesbian-only venues and groups vulnerable. Human rights is a double edged sword, able to cut us as it protects us.

Compulsory coupledom

Feminists have resisted the compulsory couple­dom of marriage. Married couples are supposed to act as a unit, sleep together all the time, satisfy each other’s emotional needs and share any money or property. However, ex-lovers are often part of lesbian extended families and many feminists/lesbians value economic autonomy and independent friendships.

Lesbians and feminists have created a wide range of partnerships and living patterns. We live with flatmates and a lover, in different households from lovers, with lover and kids, with two lovers at the same time, in Maori and Pacific Islander extended family and parenting arrangements; we co-parent children as a couple, with friends or ex-lovers, with gay couples who have fathered our children, or we may have no parenting role with our lover’s kids; we practise serial monogamy, non-monogamy or non-genital lover relationships.

Heterosexuals already judge monogamous-live-together-share-everything lesbian relation­ships as more legitimate than other common lesbian patterns. The opportunity to marry will further validate this type of lesbian relationship, undermining other patterns. It will enable judges to rule on the nature and quality of lesbian relationships using heterosexual criteria.

Marriage: ‘A dependence women hate’

The point of view so far missing in the public debate on lesbian marriage is the feminist critique of marriage as an anti-woman institu­tion. The discussion has been between christian right opponents of everything lesbian, and liberal christians who support marriage as a human right. But adding lesbians to marriage still leaves married couples with legal privileges non-married couples don’t get. It also doesn’t touch benefit structures which force parenting, care-giving, unemployed, sick or disabled women to be economically dependent on a partner.

For most heterosexual women marriage is an economic institution shrouded in talk of ‘building a life together’. A relationship with a man who has a paid job usually ensures young working women have a better standard of living than they could aspire to on their own or with another woman. The traditional assumption about marriage — that a woman swaps sexual and emotional services for a man’s economic support — is never spelt out, though benefit rules make it brutally clear.

These days, most men expect their female partners to bring some money into the house if they can, but still be economically dependent. Most people still expect mothers in paid work to care for the household as well, while their male partners are only expected to do one job. Young women in the 1990s may sometimes scoff at feminist analyses of marriage; but five years on when they’re caring full time for toddlers and he’s the one in paid work, they often find they’ve lurched from supposed equality to a dependence they hate.

As long as women are primarily responsible for raising children and caring for sick relatives, women’s jobs are treated as less important and paid less than men’s, and men’s jobs make it impossible to care for children as well, marriage will mean economic dependence for childrearing or caregiving women. If you think things are different now, talk to women who’ve left their kids to be raised by their male partners or men who stay at home while their female partners earn a good wage. They can tell you about the strength of societal expectations.

Money: no change?

Many women assume that marriage has changed because they no longer have to obey their husbands. They are unaware of the sexist laws underlying marriage until they split up. Women in the US lose up to 70 per cent of their standard of living when they leave a marriage, whereas their husbands may gain up to 40 per cent. Before the Marital Property Act in New Zealand, women did even worse. Current information isn’t available, which in itself is telling. Family law observers agree however that the outcome is still much poorer for women than for men. Says Wellington lesbian social worker Anne Ruck: ‘two years after a split, most of the women with children have descended into poverty, while husbands are 30 per cent better off’.

No-one knows if lesbian partners do any better, since there’s no research on how lesbians divide shared assets. Couples where one partner is looking after children and the other is in paid work make up only a small percentage of lesbian relationships: they’re the ones who will be directly affected by the sexist bias in Family Court judgements. However, unemployment is high. The courts are likely to treat wage-earning lesbians better when couples split up, while unemployed partners will do worse. Once benefit rules include lesbians, couples who split up would have to separate before either of them was entitled to benefit in her own right. This could leave a non-earning partner in poverty if they can’t agree on a separation agreement and she has to wait over a year for a property settlement.

Family court judges persistently devalue the contribution of longterm homemakers to families. They also assume unrealistic oppor­tunities exist for older women in the paid workforce. When women care for children their skills and knowledge from paid work gradually become out of date. Ruth Busch says the myth that equal property shares lead to equal out­comes for men and women ignores a sexist economy. The law focuses on past and present earning ability. Judges don’t consider the breadwinner’s future earning potential as a major relationship asset.

Although marital splits disadvantage wives, heterosexual women in de facto relationships come out even worse. Marital property law starts from an assumption of half shares in any property acquired after the marriage, no matter whose name it’s in. It’s the breadwinner’s job to prove the non-earner should have a smaller share. To judge de facto splits, however, the Family Court uses constructive trust law. This law assumes a woman has no share of property in the man’s name, and it’s the woman’s job to prove she contributed.

To show faith in their man, women often give up control over pooled money or let their partner keep the financial records. Men with money are more likely to know how to hide assets during a break-up, and their partners often don’t have enough of their own money to hire experts to find and value these assets. Women not in paid work often can’t support themselves during a lengthy separation process, so settle for less than they should, and many can’t afford lawyers at all.

Many lesbians and heterosexual women go into relationships assuming that any earnings and property each partner has will stay theirs; but Doug Graham’s proposed property law is likely to change this. Lesbian lawyer Ocean says legal recognition of lesbians in other countries has enabled greater state ‘surveillance and regulation of lesbians, in return for the legal “right” of lesbians to fight each other in court over property’. Since cases are unpredictable and expensive, the court is a poor option for a caregiver left without economic support at the end of a relationship, Ocean says. If such a woman does take a case, the judges will decide whether the couple’s relationship is legally acceptable: as Ocean comments, ‘This is an intolerable prospect for lesbians who wish to keep their power to define their own lesbian relationships’. Property law which is designed to deal with inequalities between men and women will impact differently on same-sex couples, and is likely to have severe conse­quences for lesbians, since their earning potential as women is generally lower. And according to Ocean ‘legal recognition’ which enables lesbians to slug it out in court is also likely to lead to much greater policing of lesbians on benefits.

Whose benefit?

Marriage and benefit laws are like two parallel mazes which go off in different directions when you reach the same corners. For example, marriage law doesn’t assume that a new partner is responsible for supporting kids from a previous relationship but New Zealand’s benefit rules do. ‘The current benefit system is grossly unfair to women’, says Errolyn Jones. Women on benefits whose sexual partner moves in are treated like prostitutes: the state won’t pay them if some man is around to do it. This is the marital model stripped of romance.

The government has been reluctant to include women’s relationships in benefit definitions, says Errolyn, ‘because it’s a nightmare. You can get two women doing the washing, cooking for each other, sleeping in the same bed and perceived socially as a couple, and they may not be in a sexual relationship. Two lesbians living together are so similar to two heterosexual women friends living to­gether’. But Treasury and other right-wing policy makers want the state to spend less on benefits. Under this regime, closing the benefit loophole around lesbian relationships has been on the cards for several years, especially since the Human Rights Amendment Act and the Bill of Rights Act. The High Court lesbian marriage case may have pushed the policy makers along.

I’m not saying lesbians should keep their invisibility and the protection it gives them from snooping, dobbing in [grassing to the author­ities] and punitive responses to women’s sexuality. No-one should be treated like that. The most obvious way towards women’s economic independence is for everyone to be treated by the state as economic individuals, whether we’re in relationships or not. The Royal Commission on Social Policy in 1988 recom­mended a standard individual benefit rate, with an extra 20 per cent for people living alone. A strong movement is essential to counter the government’s insistence on the marriage model for benefits.

Where do we go from here?

There are many possibilities for radical changes to relationship law. For example, we could demand a coherent, flexible law which can deal with the wide range of living arrangements we choose, and which will override our choices only in clear cases of unfairness or where a vulner­able partner needs protecting. We could argue for a range of legal partner arrangements, of different durations with different conditions. We could lobby for the state to treat all relationships equally for parenting, inheritance, property division, immigration and other aspects of our lives where discrimination exists. Then we can decide whether to register our relationships or make our own arrangements.

Meanwhile, lesbians and other women in de facto relationships still have fewer rights than married couples in all the areas mentioned above. The laws would each need to be changed to provide equality for all kinds of relationships. Some selected anomalies are:

Property: all couples, not just married ones, should have any property they have jointly contributed to divided equally, and future earning power should be a major consideration. However, the law should not assume that couples will automatically share property. Married couples can already contract to keep some property separate or opt out of the Matrimonial Property Act provisions. Other couples need to do this too.

Parenting: if two lesbians decide to have a child and raise it together, the non-biological parent has to apply to the court for guardianship, whereas married lesbians would automatically both be guardians.

Immigration: people who marry New Zealanders automatically get residency. De facto and lesbian partners have to prove a ‘genuine and stable’ relationship by showing shared accommodation, income, bank accounts and photos. De facto heterosexual partners must have been together for two years and same-sex couples for four. The law should treat all relationships equally.

Next of kin: your automatic next of kin are set out in the Law of Succession, which ignores de facto and same sex relationships. Next of kin can visit you in hospital, get medical infor­mation and coroners’ reports and make deci­sions about your care if you are unable to communicate. Single women cannot choose a close friend over family members. De facto and same-sex partners may be included as part of a major review of the law. Says Nigel Christie of the NZ Law Commission, ‘it wouldn’t stop a family from contesting it, but they wouldn’t have the same chance of success as they have now’.

All people should be able to easily nominate a next of kin by, say, filling in a form at a Post Office rather than having to pay lawyers’ fees.

Official definitions of ‘family’: in their analysis of the 1991 census, the department of statistics defined a family as an adult hetero­sexual couple or parent/s and children. Govern­ment policy on families remains rigidly hetero­sexist and monocultural, ignoring families of choice and extended families. We need to fight for recognition of all kinds of families.

Official recognition of lesbians: how many forms have you read that just ask for ‘marital status’? In the last few censuses, some dykes have written ‘lesbian’ over every option. Just because some lesbians might be able to tick ‘married’ in future may not make lesbians any more visible. Demand that the government recognises and counts lesbians.

Finally, while some of the systems are getting a major shake-up, let’s try to build coalitions which will get all of us greater independence and autonomy — in and out of relationships.

Update:

Since this piece was originally published in New Zealand, the three lesbian couples have lost their case. The judge decided that Parliament rather than the courts should deal with the issue. However, an appeal has been lodged and will be heard in 1997. Doug Graham’s proposed new law on property division failed to materialise when an election was called earlier this year, but observers expect some kind of proposal to be brought forward in the near future. 

This piece is reprinted from Broadsheet Hotoke/Winter 1996, p11-18. It has been shortened slightly and edited to make it clearer for a non-New Zealand audience. T&S thanks Broadsheet editorial collective and especially Jenny Rankine for permission to reuse material, for updating some of the information contained in the original article and for help in choosing English equivalents for Maori words and concepts.

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