No one should have to marry: How marriage equality could actually limit couples' choices

On Tuesday, I opened a Priority Mail envelope. Its contents made me cry: A hard plastic card, my photo overlays a background of Lady Liberty’s face. “Permanent Resident,” it reads. My green card, in my hands after three years of paperwork, interviews with stern-faced immigration agents, a joyous wedding and a painful divorce. If my experience with U.S. immigration services has taught me one thing, it is this: Do not underestimate the importance of marriage to the state.

Indeed, it is the only union that the federal government will recognize, the only status by which committed couples with a non-American partner can stay in the country together. This underlines the great importance of last week’s ruling to legalize same-sex marriage nationwide. To deny same-sex partners access to marriage, thus access to state recognition, is discrimination, pure and simple; Obergefell is a necessary victory. But it should not come at the sake of other partnership statuses, both legally and extra-legally. The right to marry should not entail the necessity to marry.

A number of articles since last week’s ruling have raised the question of whether businesses and states will continue to recognize domestic partnerships, or offer civil unions, now that same-sex marriage is legal nationwide.

Domestic partnerships and civil unions were first created to afford rights to same-sex couples when and where gay marriage was not legal. Domestic partnerships, which don’t require state recognition, but employer recognition, enable partners to receive healthcare benefits. (The federal government doesn’t recognize such unions for tax benefits, nor for immigration purposes for non-American partners — couples must put the regulative ring on it.) Civil unions opened access to inheritance rights, guardianship and hospital visitations.

It’s unclear how many Americans have joined into these kinds of partnerships. But as FiveThirtyEight reported, “According to the 2010 census, 6.8 million households include unmarried, opposite-sex partners (5.9 percent of all households), compared with about 650,000 households with unmarried, same-sex partners (0.6 percent of all households).”

The New York Times reported this week on concerns that businesses will phase out domestic partnership benefits, requiring couples to marry within a certain time frame to continue to receive them. As the Times reported, “Some large employers — including Verizon, Delta Air Lines, IBM and Corning — already have… rescinded domestic partner benefits to employees living in states where same-sex marriage was legalized and replaced it with spousal coverage.” It’s a move that both fails to recognize domestic partnership’s evolution into more than just a stepping stone to legal marriage (although for many couples it was just that). Rescinding domestic partner benefits further shores up the married couple as the only recognized unit.

Civil unions for same-sex couples have had a slightly different historic trajectory. In the five states that legally recognized them and have since recognized gay marriage, civil unions are no longer performed, and previous civil unions have been converted into fully legitimized marriages.

For many opponents of marriage, the argument against it is situated in rejecting the state’s role in sanctioning love — so the fact that the state doesn’t recognize domestic partnerships suits such anti-marriage parties (myself now among them) just fine. But since I have to work to pay the rent, and medical care is gravely expensive here, I would thus like to have access to domestic partnership benefits without marrying (again).

I’d heap confetti on any couple who had wanted to legally marry, couldn’t but now can. For those who found resonance in Justice Kennedy’s words on the “transcendent purposes of marriage,” let the champagne flow, although I might challenge your understanding of the meaning of “transcendental.” I admit I’ve seen beauty in that problematic institution: I wept at my brother’s wedding. I trembled at mine and meant the vows then. I tell my love now that I’d anti-state marry him any day — a gesture which points, again, to the idea of marriage’s stubborn place in the romantic imaginary.

I have been through a marriage of great love, and then great pain. And I’ve also faced first hand what it looks like to prove a marriage’s legitimacy to the state. For the record: it involves shared bank accounts, receipts, rent stubs, shared insurance — an asset merger, in short. Justice Kennedy’s panegyric to existential identification is of little interest to the immigration agents who decide what counts as real marriage and which partners get to live in this country. I also know the current necessity of state recognition, and what it feels like to obtain it. It is why I can sit and write, U.S. soil beneath me. It is bright relief, that should be denied no one. Relief, of course, being predicated on a previous fear.

We might consider what full state recognition of unmarried, totally committed couple units could look like for both same-sex and opposite sex couples. But surely such a status would incur the same criticism leveled at plain old marriage: why get the state involved?

If the problem with marriage is the state’s hegemonic control over which people and sets of relationships get recognized, then the challenge is, of course, to such operations of power, not to individuals rightfully seeking equal rights and liberties within such a system. In both the case of state-recognized marriage and employer-affirmed domestic partnership, we’re talking about obtaining recognition from an institution that wields power over us. We can hate this, and work to fight against it, while appreciating the exigencies of navigating it now.