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Registering Relationships The Columbia Law School Center for Gender & Sexuality Law Colloquium Series Registering Relationships Erez Aloni, 2011-2013 Center for Reproductive Rights-Columbia Law School Fellow Commentator: Ariela Dubler, George Welwood Murray Professor of Legal History, Columbia Law School Wednesday, March 21, 2012, 12:00 p.m., William and June Warren Hall, Room 101 (Amsterdam Avenue and 115th Street) Dear Workshop Participants: Thanks for taking time to read my draft and react to the project. I’m eager to hear your feedback on any/all aspects of my paper. For those with limited time, I suggest reading the Introduction, Section III (Suggestions for Legal Reform and Their Shortcomings), and Section IV (Registered Contractual Relationships). I’m looking forward to talking with you about my project. Best regards, Erez Aloni Upcoming Center for Gender & Sexuality Law Events Wednesday, March 28 – Katherine Franke, Isidor and Seville Sulzbacher Professor of Law, Feminist Lawyering in Palestine: Notes from the Field Tuesday, April 10 – Screening of (A)Sexual with lead activist and filmmaker David Jay, cosponsored with Prof. Elizabeth Emens and Outlaws Wednesday, April 18 – Screening of Women, War, and Peace and Q&A with director Pamela Hogan, cosponsored event with the Center for Institutional and Social Change Thursday, April 19 - Deconstructing and Reconstructing Mother: Regulating Motherhood in International and Comparative Perspective Workshop, cosponsored with the Institute for the Study of Human Rights and the Institute for Social and Economic Research and Policy More information about the Center for Gender & Sexuality Law Colloquium Series and other Center activities is also available at http://www.law.columbia.edu/center_program/gendersexuality WORKING DRAFT – PLEASE DO NOT QUOTE OR CITE WITHOUT AUTHOR’S PERMISSION 3/13/2012 10:52 AM REGISTERING RELATIONSHIPS EREZ ALONI∗ Despite the dramatic changes in family structure in the past decades—including the unprecedented and skyrocketing number of families who live in non-marital arrangements—marriage and marriage- mimic institutions remain the only legal options for the recognition of relationships. This regulatory regime leaves millions of Americans without the means to establish and protect relationship rights. The article suggests that the legal issues arising from non-marital relationships would be best addressed if more options for legal recognition of such relationships were offered. Accordingly, this article presents the primary principles of a registration-based marriage alternative, founded on contract: “registered contractual relationships.” This legal institution would offer couples the option to sign—and deposit with the state registrar—a contract defining the partners’ obligations and rights vis-à- vis one another and changing their status to that of “registered partners.” Registered partners would receive most of the rights and benefits that the state provides for married couples. Registration would not require a solemnization process nor any ceremonial or religious component and would provide an easy way to dissolve relationships in cases where couples do not have minor children. This model enjoys the flexibility of contracts and the certainty of official registration. It promotes greater autonomy in family formation in two ways: it allows more choice among state-sanctioned mechanisms; and it allows people to design the terms of their relationships, rather than imposing the one-size-fits-all structure of marriage. The introduction of registered contractual relationships would have far-reaching legal and societal consequences. It would provide a functional model for registration and termination of partnerships, offer an alternative that is free of (and reduces) the harmful symbolism of marriage, and accommodate a wide range of family structures. At the same time, it would efficiently address the state’s need to regulate some aspects of relationships in the interest of avoiding and mediating conflict and of ∗ For extremely helpful comments and conversations at various stages of this article’s progress, I am grateful to: Anita L. Allen, Carlos A. Ball, Cynthia G. Bowman, Richard Chused, Elizabeth F. Emens, Katherine M. Franke, Cynthia Godsoe, Clare Huntington, Suzanne A. Kim, Solangel Maldonado, Serena Mayeri, Jessica Miles, Elizabeth S. Scott, Elizabeth Sepper, Jane M. Spinak, Edward Stein, Richard Storrow, Kendall Thomas, Bela A. Walker, Tobias Barrington Wolff, and Deborah Zalesne. I also benefited greatly by comments I received when presenting the paper at Columbia Law School Fellows and Associate Workshop and the New York Area Family Law Scholars Workshop. 1 EREZ ALONI 3/13/2012 10:52 AM 2 encouraging couples to think about and negotiate their rights early in their relationships. The article also looks at the success of the French PACS—a model that resembles registered contractual relationships and provides important lessons to the United States. INTRODUCTION ....................................................................................................... 3 I. THE DEMOGRAPHICS AND SOCIAL SCIENCE OF NON-MARITAL UNIONS IN THE UNITED STATES .................................................................................... 6 A. The Changing Family Structure ................................................................ 7 B. Who Are They and Why Don’t They Get Married? ................................. 8 II. LACK OF LEGAL RIGHTS FOR UNMARRIED COUPLES .................................... 12 A. Inadequacy of Non-Registered Mechanisms .......................................... 13 1. Contract-based Rights ...................................................................... 13 2. Equitable Remedies .......................................................................... 14 3. Status-Based Rights .......................................................................... 15 B. Inadequacy of Domestic Partnerships and Civil Unions ......................... 16 III. SUGGESTIONS FOR LEGAL REFORM AND THEIR SHORTCOMINGS ................. 19 A. Traditionalism ......................................................................................... 19 B. Abolitionism ........................................................................................... 22 C. Functionalism .......................................................................................... 23 D. The Menu of Options .............................................................................. 27 E. Intermediate Summary: The Principles of a Menu of Alternatives ........ 28 IV. REGISTERED CONTRACTUAL RELATIONSHIPS............................................... 29 A. The Mechanism ....................................................................................... 29 B. Theoretical Justifications ........................................................................ 32 1. Autonomy .......................................................................................... 32 2. Gender Equality................................................................................ 37 C. Possible Weaknesses of Registered Contractual Relationships ................ 43 1. Could Registered Contractual Relationships Happen? .................... 43 2. Would the Federal Government Recognize Registered Contractual Relationships—and Does It Matter? ............................ 46 3. People Do Not Contract about Their Relationships and Will Choose Marriage Even If They Are Offered Other Options ............. 48 V. THE EVOLUTION AND REVOLUTION OF THE FRENCH PACS ......................... 49 A. The Dual Purpose of the PACS ............................................................... 50 B. The Structure of the PACS : A Registered Contractual Cohabitation .... 52 C. What Makes the PACS So Useful to Couples in Non-Marital Relationships ................................................................................................. 54 1. The PACS Provides More Rights for Unmarried Couples and Responds to a Societal Need ............................................................. 55 2. The PACS Provides an Alternative Free of the Symbolic Harm EREZ ALONI 3/13/2012 10:52 AM REGISTERING RELATIONSHIPS 3 of Marriage ....................................................................................... 57 D. Lessons for the United States .................................................................. 59 E. Is the French Model Applicable to the United States? ............................ 60 CONCLUSION ........................................................................................................ 62 INTRODUCTION For many American lawmakers—Republicans, Democrats—the solution to most of the problems that the American family faces is in encouraging more marriages. Indeed, “Marriage is the foundation of a successful society,”1 Congress announced in 1996. It is key to the family’s health, wealth, well-being, stability, as well as the best environment to raise children. To support this policy, marriage is singled out as the only worthy legal institution for recognition of relationships. Hundreds of millions of dollars are invested in programs that aim to advance “healthy marriages and responsible fatherhood”;2 a few states have enacted covenant marriage in an attempt to reduce divorce rates;3 and social welfare programs are designed to penalize unmarried mothers.4 But such a policy not only fails to influence people’s behavior in a meaningful way—as is evident from the skyrocketing number of non- marital unions in
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