When Legal Marriage Isn’t Enough

by Katrina Kimport

In many circles these days, you hear that the gay and lesbian movement is winning—at least when it comes to same-sex marriage. In a little over a decade, 37 states have legalized same-sex marriage, and the number keeps growing, prompting some to believe that nationwide legal same-sex marriage is inevitable. We should appreciate these changes as symbolic victories for equality but, as a recent article in The Atlantic shows, having marriage doesn’t always mean same-sex couples experience full equality in their day-to-day lives. There are lots of things that different-sex couples enjoy as soon as they’re married that same-sex couples still have to fight for. Kimport_image1

For the same-sex couple in the Atlantic article, that thing was health insurance. Jacqueline Cote legally married Diana Smithson in Massachusetts in 2003. Starting in 2006, Cote tried to add Smithson to her employer-sponsored health insurance. And each year, she was told she couldn’t add a same-sex spouse to her insurance. In 2012, this refusal became especially consequential when Smithson was diagnosed with ovarian cancer and lost her private insurance. Cote has claimed that her employer discriminated against her. The U.S. Equal Employment Opportunity Commission recently ruled in her favor. In the near future, she will probably get some money to offset medical costs and can now add Smithson to her insurance. But even if this is the happy outcome, their story shows that married same-sex couples still have to fight for benefits different-sex married couples receive without much effort.

The question is: which fights come first? For my book, I talked with 42 gay men and lesbians who married during the brief one-month period in 2004 when San Francisco issued marriage licenses to same-sex couples. The approximately 4000 weddings that took place in 2004 were ultimately invalidated but they were the first large-scale instance of gay marriage. In the context of the burgeoning marriage equality movement, they offer a window into same-sex couples’ initial hopes, wants, and needs for marriage. I discovered that not all same-sex couples want or need the same things from marriage. And those things that they do want and need turn out to not be entirely idiosyncratic either. They are patterned by gender.

Most of the men I talked to about why they married emphasized hospital visitation access for their partner. Most of the women, in contrast, pointed to benefits of marriage that had more to do with parenthood, mentioning things like ease of establishing parenthood status for a non-birth child. These interests likely stem from the differing historical experiences of gay men and women. As the historian George Chauncey notes, gay men experienced the trauma of being barred from visiting their dying partners in the hospital during the AIDS epidemic—and this may explain their focus on certain rights of marriage. Lesbians, meanwhile, are far more likely to be parents than gay men, which may explain their commitment to the parental rights that come with marriage.

English:  Legal status of same-sex marriage in the United States1    Same-sex marriage legal    Current legal status of same-sex marriage is complicated2,3,4    Neither legal prohibition nor legal recognition of same-sex marriage    Judicial ruling against same-sex marriage ban, stayed indefinitely pending appeal    Same-sex marriage banned

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Although the couples I spoke with hoped legal marriage would be enough to achieve coveted benefits like hospital visitation and recognized parenthood status, stories like that in the Atlantic show that many of the benefits that are supposed to come with marriage take additional work to achieve. My research suggests that men and women same-sex couples would rank the importance of the everyday benefits of marriage differently. Men, for example, might prioritize changing hospital policies on access to patients while women might privilege challenging the parental language on birth certificates.

With finite resources for achieving marriage equality, this pattern by gender matters because it poses questions about which fights for everyday equality will happen first and which will take a backseat. Untangling how legal marriage is treated in the private sector, from employer-sponsored health insurance to wedding cake bakers, will take effort. Going forward, it’s worth considering which fights to wage first. We should pay attention to which same-sex couples are benefitting and remember that gay men and lesbians may have different immediate needs.

Katrina Kimport is professor of Reproductive Sciences at the University of California, San Francisco. 

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