Marriage and The Nuclear Family

Extract 1 : Marriage and the nuclear family.
Extract 2 : Same-sex Marriage: To Be or Not To Be?
Extract 3 : Alternatives to Marriage and Conclusion.

Alternatives to Marriage

In a radical departure from the steadfast institutionalisation of the heterosexual norm, the 90s saw the emergence of a new claim to rights. Starting in Scandinavia and moving west to the USA were campaigns for the right to register same-sex partnerships. Although not all homosexuals want to marry1, the purpose behind this was as a prelude to promoting same-sex marriage on an equal footing to heterosexual marriage.
"Contemporary marriage cannot be legally defined any more precisely than as some sort of relationship between two individuals, of indeterminate duration, involving some kind of sexual conduct, entailing vague mutual property and support obligations, a relationship which may be formed by consent of both parties and dissolved at the will of either."2
'Domestic partnership ordinances' have acknowledged the existence of non-traditional families in the USA by conferring certain benefits on domestic partners (heterosexual or homosexual) that are within the authority of local government to grant.3Although not the perfect answer, this has had the effect of promoting equality.

Conclusion

Wardle contends that "same-sex unions do not match the contribution to society that are made by heterosexual marriage"4 , but "why encourage stability in gay partnerships by way of privately ordered trusts, contracts and wills but not allow homosexuals the imposed, standard, safety net of marriage that politicos urge on cohabiting heterosexuals?"5 Smart believes (monogamous) marriage is the only "respectable institution"6 but statistics have shown that registered same-sex partnerships (in Denmark) are as stable as English marriages.7
Tonnies identifies two ideal societies: Gemeinschaft - a pre-modern society characterised by social harmony in which relationships were mediated by love, duty, common understanding and purpose; and Gesellschaft - a modern commercial society epitomised by individualism, competition and formality.8 These have come to be used as a metaphor for the private realm of family life9 and the public sphere of the market workplace. The perception of a family is now firmly within the public sphere and any notions of the traditional nuclear family are outdated. Although our "culture stills fails to validate non-heterosexual lives"10 , a liberal functionalist vision of the family - as a primarily economic unit providing emotional and psychological support for its members - may be prevailing and paving the way towards equality.
It has been recognised in the US that homosexual couples can constitute 'families' for the purposes of certain laws.11 The New York Court of Appeal held in Braschi v Stahl Associates12 that:
"a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long-term and characterised by an emotional and financial commitment and interdependence."
This wide definition of the family heralded unprecedented recognition of homosexual families and must be commended for its activism. Further, the Hawaii Supreme Court held that its State Constitution did not permit a discriminatory sex-based classification that restricted marriage benefits to heterosexual couples.13 This again illustrates how the law can help to change social perceptions of marriage and the family, and ease the homophobic attitudes that continue to plague our society.14 The first step for Britain must be to legalise domestic partnerships for same-sex couples, with a view to ultimately making marriage a real option. The nuclear family can still lie at the fulcrum of society, however this need not be in the form common ideology would appear to visualise.

  1. See Weeks, Heaphy and Donovan "Partners by Choice: Equality, Power and Commitment in Non-heterosexual Relationships" in Allan supra. n. 5[^ Return]
  2. Clark "The Law of Domestic Relations in the US" cited in Bowman and Cornish "A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances" [1992] 92 Columbia Law Review 1164[^ Return]
  3. Ibid.[^ Return]
  4. Wardle "Same-sex Marriage and the Limits of Legal Pluralism" in Eekelar & Nhlapo (eds.) (1998) 'The Changing Family: Family Form and Family Law', Hart Publishing[^ Return]
  5. Barton "The Homosexual in the Family" [1996] Family Law 627 at 630[^ Return]
  6. Smart "Law and the Control of Womens' Sexuality: the Case of the 1950s" in Hunter (1981) 'Controlling Women: The Normal and the Deviant' Croom Helm[^ Return]
  7. Eekelar "In Practice: Registered Same-sex Partnerships and Marriages - a Statistical Comparison" [1998] Family Law 561[^ Return]
  8. O'Donovan supra. n. 12[^ Return]
  9. Which can be traced back to Aristotle's oikos: see Foucault (1990) 'The History of Sexuality: Volume 3, The Care of the Self', Translated from the French by Robert Hurley (1990), Penguin Books[^ Return]
  10. Weeks et al in McRae supra. n. 13[^ Return]
  11. See Editors of the Harvard Law Review (1990) 'Sexual Orientation and the Law', Harvard University Press, London [^ Return]
  12. No. 108 (1989) NY LEXIS 877[^ Return]
  13. 3Baehr v Lewin 852 P.2d 44 (Hawaii 1993)[^ Return]
  14. See Griffin "Another Case, Another Clause - Same-Sex Marriage, Full Faith and Credit and the US Supreme Court's Evolving Gay Rights Agenda" [1997] Public Law 315[^ Return]

 

Extract 1 : Marriage and the nuclear family.
Extract 2 : Same-sex Marriage: To Be or Not To Be?
Extract 3 : Alternatives to Marriage and Conclusion.

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