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8 J.L. & Fam. Stud. 325 (2006)
Who Needs Marriage: Equality and the Role of the State

handle is hein.journals/jlfst8 and id is 335 raw text is: Who Needs Marriage?: Equality and the Role of the State Elizabeth B. Cooper* I. INTRODUCTION1 Who needs marriage? It is hard even to pose this question as marriage is such an assumed part of life. To try to answer this question, we must start with an even more fundamental question, what is marriage? The history of marriage is not necessarily what one might expect: the Bible includes stories of male leaders having multiple wives as well as concubines;2 European history is filled with marriages arranged for amassing power and armies and the birthing of a male heir.3 The history of American marriage is no more appealing: until the mid-twentieth century, women remained in many circumstances literally the property of their husbands-with no right to own property of their own, no right to enter into contracts, and no * Associate Professor, Fordham University School of Law. 1 I was the Reporter for the Special Committee to Examine Issues Affecting Same-sex Couples appointed by the New York State Bar Association (NYSBA). The Report of that Committee was published in November 2004. The NYSBA subsequently adopted a policy favoring a holistic approach to rectifying the disparities experienced by gay and lesbian couples compared with their married, heterosexual counterparts, namely comprehensive domestic partnership, civil union or marriage. A majority of the committee wrote that full access to marriage was the only legally and socially appropriate solution. See REPORT AND RECOMMENDATIONS OF THE SPECIAL COMMITTEE TO STUDY ISSUES AFFECTING SAME-SEX COUPLES (Oct. 2004). This presentation relies significantly on the work I did for the NYSBA, but also provides me with an opportunity to share my personal analysis of the pertinent issues. Neither that Report nor this paper could have been completed without the dedicated brilliance of Rebecca L. Ciota, the generosity of the NYSBA and Fordham University School of Law, and the support and patience of many colleagues, friends and family members. All errors, of course, are my own. Finally, I extend my deep gratitude to University of Utah S.J. Quinney College of Law professors Martha Ertman and Laura T. Kessler and to the editors and staff of the JOURNAL OF LAW AND FAMILY STUDIES. 2 Some of our biblical forebearers partnered for love, but their marriages were hardly models we would embrace today: Abraham was married to Sarah, but also had relationships with concubines and with Sarah's handmaid, Hagar. See Genesis 16:1-6, 25:1-6. Jacob, who also had a number of concubines, was married to Leah when he married Rachel. See Genesis 29:1-35, 30:1-24. 3 Consider, for example, the marriage of Gaius Julius Caesar's daughter, Julia, to Gnaeus Pompeius Magnus in order to cement Caesar and Pompey's alliance in their First Triumvirate, with Marcus Licinius Crassus. POMPEY, at http://en.wikipedia.org/ wiki/PompeyjtheGreat. Consider further the German guilds that required that men marry in order to move up in class from journeyman to master. See E.J. Graff, What is Marriage For?, 38 NEW ENG. L. REV. 541, 542 (2004). 12 1 AZ

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