The Lesbian and Gay Family

The notion of what constitutes a family has undergone much change in recent years. While the majority of American households continue to be made up of married couples with or without children, even the so-called traditional family has undergone change due to the rise in the number of households in which both members of the couple work outside the home, the later age at which couples are having children, and the likelihood that most marriages will end in divorce. 1 "The average American marriage does not last a lifetime, but a much more modest 9.6 years."2 Moreover, many Americans are now living in nontraditional families. Approximately one-fourth of family households today consist of children maintained by a single parent, and nearly a fourth of new births are to unmarried women.3 Approximately 2.6 million households are maintained by unmarried couples living together, and the number of unmarried cohabiting heterosexual couples increased by more than 500 percent from 1970 to 1989;4 an additional 2.5 million households consist of other multiple members who were unrelated by blood, marriage, or adoption.5 In addition, 21.9 million, or 24 percent of all American households, in 1989 consisted of single people living alone.6 What all of these figures mean is that the majority of Americans will spend more of their lifetimes outside, rather than as part of, married-couple households.7

Despite this increasing diversity in American family life, the law still harshly discriminates against unmarried couples and other families in which there has not been a marriage. For lesbians and gay men, marriage is not an option. Thus, among this class of citizens, critically important personal relationships are, as far as the law is concerned, usually treated as though they do not exist.

An elaborate body of laws has developed with respect to the benefits, rights, and privileges of persons who commit themselves to intimate personal relationships that are recognized through marriage. Marital partners have certain advantages in paying their income, gift, and estate taxes. They may inherit from one another without a will; they may own property in tenancy by the entirety; each may recover for the wrongful death of the other; they may adopt children more easily than singles; and they may lawfully have sexual relations. Most of these and many other public benefits are denied to those who elect not to marry or who are not permitted to marry. Employers also often dispense benefits such as insurance, pension survivorship plans, and sick and bereavement leave on the basis of marital status. Private organizations such as airlines, insurance companies, and banks also offer their goods and services on terms that discriminate in favor of married customers.

Many lesbian and gay couples now live together as families and seek to obtain the benefits that society and the government confer on married couples. There is no reason in principle why two gay men or two lesbians should be prevented from entering into a relationship that is deemed, for all purposes, to be a lawful marriage. Nonetheless, the law has consistently refused to recognize same-sex marriages.

There are legal barriers to lesbian and gay marriages and the financial disabilities that result for gay men and lesbians because they cannot lawfully marry. It explores alternative means of obtaining some of the financial benefits that are based on marriage.