Civil Unions Come to Delaware

The US state of Delaware is the latest state to add civil unions... but not the freedom to marry to same-sex couples or wider full marriage equality for all. Katherine Franke at the Columbia law blog examined the law.

The law repeats incest/filiation taboos commonly included in marriage laws by excluding from eligibility any person who seeks to be civilly unioned with “his or her ancestor, descendant, brother, sister, half-brother, half-sister, uncle, aunt, niece, nephew or first cousin.” This is curious since the typical justification for prohibiting marriages between persons of this degree of relation is concern about genetic mutations in off-spring, which concern clearly doesn’t apply when the union is between two persons of the same sex. But the incest exclusion is problematic for another reason. Nowhere in the eligibility criteria does the law state that the two parties have to be romantic or sexual partners. One can be civilly unioned with a friend, a colleague, a stranger (anyone watching Grey’s Anatomy?), really anyone – just not a relative. Yet there are thousands, if not millions, of people in the U.S. who live with their sister, their mother, their aunt or some other relative, functioning as domestic partners. These people are unable to have those domestic partnerships legally recognized by the new civil unions law because the law is intended to look as much like a marriage law as possible. What the law doesn’t do is take up an idea of family in a larger, more realistic way that captures interdependency rather than old-fashioned notions of the nuclear family (cue Nancy Polikoff here). So, the incest taboo survives to rule another day, and once again limits the rights available in a new, ostensibly progressive, change in the law.

These legal gymanastics should be put to rest in favor of full marriage equality. Why shouldn’t an adult be able to marry any consenting adults?

The new law is being celebrated as the next step on the way to full marriage rights for same-sex couples in Delaware. But can’t we do better than marriage-lite when we advocate for law reform in this area? The provisions I have highlighted above give us ample reason to be concerned about the social cost of securing legal rights for a narrow group of same-sex couples in Delaware at the expense of many, many others.

Civil unions are better than nothing, but same-sex couples should have the freedom to marry. They should have the freedom to marry even if they are close relatives. They should have the freedom to add another spouse. None of this should be anyone else’s business.