License to Wed
California Lawyer

License to Wed

What Legal Marriage Means to Same-Sex Couples

January 2014

License to Wed: What Legal Marriage Means to Same-Sex Couples by Kimberly D. Richman
New York University Press, 272 pages, $39, hardcover

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Those of us who toil in the fields of prenups and divorce occasionally wonder - especially in an adversarial breakup - why did these folks ever get married? Our musings mostly focus on the incompatibility of the particular couple, rather than the broader question of why anyone gets married. More than 450,000 Californians marry each year, but ironically it's the rush of lesbians and gay men to the altar that has enabled Kimberly Richman, a straight married sociologist at the University of San Francisco, to explore this most essential question.

Unlike those who rely on the anecdotes of clients for evidence, Richman persuaded more than 4,000 same-sex couples who were married at San Francisco City Hall in 2004 to fill out a detailed questionnaire, of which nearly 1,500 became part of her survey database. Then she interviewed 100 recently married same-sex couples, half from San Francisco and the rest from Massachusetts. As her concern was motivation, the subsequent invalidation of the California marriages was irrelevant. For those who practice family law, reading Richman's book is like being taken backstage to a drama we only partially comprehend: So that's why they did this! you will exclaim.

Richman is an effective communicator, explaining her research results clearly and bolstering her findings with narratives that illustrate each point. She works in a framework of "legal consciousness," exploring "the way that people understand, experience, use, avoid, or resist law and its manifestations." As a sociologist rather than a lawyer, she wants to understand the emotional and symbolic meaning of marriage, as "a source of validation, inclusion, and public affirmation for what is essentially a private act." Marriage is particularly intriguing as both a public and private act, inspired by personal motivations but with broader social implications - probably the most popular legal "contract" of our society - and thus certainly worthy of study.

Richman fully grasps how marriage plays out differently for same-sex couples. She commences her book with an erudite history of the gay-marriage movement, capturing the community politics of assimilation and marginalization, as well as the larger societal debates, that provide the context for her subjects' motivations: access to practical rights, marriage as protest and as social validation, and simply as an expression of a couple's love. We're quite familiar with the quest for legal rights - it's been the focus for marriage-equality advocates for years - and one need not be gay to relate to the love stories. In many ways, therefore, it is the author's explanation of marriage as social protest and public validation that is the most instructive - and where gay couples bring a different meaning to the institution.

In the face of the tsunami-like wave of opposition to gay marriage, gaining entry into this most conservative social institution has ironically become an act of social protest. Even for those whose political activism hums at a low speed, being labeled "sick" or "undeserving" and thus excluded from marriage is a cruel insult, so busting through the civil-marriage door has become a compelling cause.

But it's in her explanation of how marriage serves to validate the lives of same-sex couples that Richman provides the most essential insights. She explains how the alienation of "minority stress" and social exclusion has been so harmful, and how marriage can "function as an imprimatur of public approval for one's relationship - and by extension, one's peoplehood." Even though marriage is essentially a private act, a common thread for the couples she studied "was the degree to which their sense of full citizenship and humanity emerged as an embedded and intrinsic feature of their marriage."

In my practice, I'm regularly asked how gay marriage is different from straight marriage, and my response typically focuses on such legal complexities as premarital assets and the federal nonrecognition of domestic partnerships. Richman's research brings a welcome added depth to that question, and her book provides essential insights about marriage that every family lawyer working with same-sex couples needs to understand to fully grasp their clients' situation and provide them effective representation.

Frederick Hertz is an attorney-mediator and author of Making It Legal (Nolo Press) and Counseling Unmarried Couples (ABA Press).

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