5. CONTRASTING LEGAL SITUATIONS: MARRIAGES & COMMITTED, LOVING, SAME SEX RELATIONSHIPS

For the last three decades, the traditional law of marriage and the family has been under siege. The legal institution of marriage has been transformed. The resulting legal structure offers greater liberty and fairness for the affluent, less security for the less affluent, and less predictability and order for all married people.

During the same three decades, gay and lesbian citizens have achieved some geographic pockets of public acknowledgment (primarily in urban areas), antidiscrimination laws in some areas (e.g., employment), and some transformation in public attitudes (especially among better educated heterosexuals). Nevertheless, when compared to the foundation which the law offers married couples, same sex couples labor under profound and pervasive legal disabilities.

For example, by the simple public act of marrying, men and women achieve a substantial package of rights and duties which, collectively, provide support and predictability to their marital relationship: (1) legal recognition of their sexual union, (2) legal enforcement of their mutual obligation to financially support each other, (3) automatic guardianship and custody of the children of that union, (4) improved ability to adopt the children of others, (5) legal enforcement of their mutual obligation to support their children, (6) legal recognition of the confidentiality and the constitutional sanctity and importance of their marriage, (7) insurable interests in each other's lives, (8) next-of-kin status in the event of medical emergencies, and, (9) in the event of a death, the right to one-half of each other's estate.

In the event that marital discord develops, the law makes it difficult to terminate the marital union, provides - where needed - for continuing financial support during a period of readjustment, adjusts inequities in the parties' wealth, allocates the parties' rights and duties with respect to children of the marriage, and retains legal jurisdiction over the custody, care and financial support of those children until they attain the age of majority.

In contrast, by the simple mechanism of denying the legal validity of same sex marriages, the law of Maryland denies to same sex couples all of the automatic stability and legal support I have noted.

For same sex couples, legal toleration of their private sexual behavior is not the same thing as legal support for and acknowledgment of their public relationships. Although the law may respect the constitutional privacy of their homes, when same sex couples come out into the daylight, the couple is legally invisible.

As individuals, same sex partners may lawfully contract, establish joint trust bank accounts for their mutual security and benefit, jointly purchase and hold real estate with mutual rights of survivorship, appoint each other their respective medical agents with authority to grant or withhold informed consent, provide for each other's well-being by gift or deed or will, and undertake most of the legal strategies which heterosexual lovers utilize. Therefore, when I assert that the same sex couple is "legally invisible", I am emphasizing the fact that it is the same sex relationship which is denied legal recognition, not the same sex partners as individuals.

Married couples increasingly utilize these legal tools, in part, because they have concluded that the security and support provided by marital status is inadequate, uncertain, or both. The increased utilization of prenuptial agreements, for example, recalls the utilization of marriage contracts in ancient Rome prior to the institution of sacramental marriage.

Unmarried couples committed to a permanent, loving relationship can and should consider these legal tools because the security of legal marriage is unavailable. In fact, except in those instances where each person is financially self-sufficient, the unmarried couple's failure to consider and implement a plan of mutual financial security may indicate that their commitment to a "permanent" relationship is less than total.

In this context, I should note that the law provides assurance that basic, contractual (civil) rights will be enforced between same sex couples only by avoiding any formal recognition that an intimate, physical relationship of the parties is the cause of their agreement.

Plainly stated, an otherwise lawful agreement is not made unenforceable simply because the parties are not heterosexual; nor is that agreement made unenforceable simply because the parties are engaged in a same sex relationship involving physical intimacy. In contrast, however, an agreement in which one person is promised financial benefit in exchange for or because of legally proscribed physical intimacy is not legally enforceable.

In the terms of the law, marriage (with its inherent legal duties and its implicit sexual element) is valid "consideration" for legally enforceable agreements. Sex, outside of marriage, is not legally recognized consideration for anyone's contracts in this state. In Maryland, an agreement conditioned upon a sexual relationship outside of marriage would be held by our courts to be "void as against public policy". "Don't ask, don't tell" is not merely the position of the United States military establishment, it is the position of Maryland contractual law.

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