1. Cinderella's SequelAfter Marriage Equality, What Next?William N. Eskridge Jr.John A. Garver Professor of JurisprudenceYale Law SchoolJune 2014

2. Marriage Equality, 1993

3. Marriage Equality, 2003

4. Marriage Equality, June 2013

5. Marriage Equality, June 2014

6. The Cinderella Moment, 2012-13 With President Obama’s endorsement of Marriage Equality and his Reelection (2012) and the Supreme Court’s decision striking down the core of DOMA in Windsor (2013), Marriage Equality enjoyed a Cinderella Moment. Once dismissed and disrespected, like Cinderella, Marriage Equality now attracts the attention of high society and dances in the ballroom. Cinderella has met her Charming Princess though no precise Wedding Date yet 

7. Cinderella’s Sequel: After Marriage Equality (1) Consequences for Society (a) Marriage. Unlikely that gay marriage will affect the incidence or longevity of marriages. (Marriage Bounces occurred after equality in Denmark and Massachusetts, for example.) Marriage equality would, however, reinforce the nondiscrimination norm for entry into marriage and would encourage further relaxation for marriage between cousins and persons related by marriage, but probably not polygamy (in the short/medium term).

8. Cinderella’s Sequel (1) Consequences for Society (b) Sexual and Gender Variation. Normalization of domestic male roles and breadwinning female roles; links to feminist norms. Normalization of homosexuality; more LGBT persons would be “out of the closet” (often due to their marriages, a la Lily Tomlin). Normalization of gender fluidity, as gender delinked from marriage. Generally, lower stakes for gender and sexual variation. Decline of LGBTI persons as a coherent social “group” or as a “social movement.”

9. Cinderella’s Sequel (1) Consequences for Society (c) Religion in America. Marriage Equality will not formally “require” traditionalist religions to perform same-sex marriages, but the social process by which Marriage Equality has triumphed will put pressure on American religion to deemphasize procreative marriage and “natural” gender roles as central to faith. Compare the process by which LDS and Southern Protestantism abandoned racial purity (anti-miscegenation) as central to God’s Word after the civil rights movement won constitutional and legal equality, including marriage equality.

10. Cinderella’s Sequel (2) Family Law Relationship Menu Big trend in Family Law is not modestly expanding the institution to include same-sex couples, but instead expanding the family law menu beyond civil marriage. The end of marriage’s monopoly as the only regime for romantic couples to organize their lives ended a generation ago, with common law and statutory duties and rights for cohabiting couples. Cohabitation is a legal regime available in most states to same-sex as well as different-sex couples. Marriage Equality movement has stimulated the creation of new statutory regimes, some of which will become more popular even after Marriage Equality sweeps the field.

11. Cinderella’s Sequel (2) Family Law Menu (a) Marriage vs. Civil Unions. Marriage will continue to be the central institution for state regulation of romantic relationships. But a new competitor might be civil unions/domestic partnerships created as compromises to ameliorate opposition to Marriage Equality. Increasingly, different-sex as well as same-sex couples have access to civil unions (e.g., Colorado) or statewide domestic partnerships (e.g., Nevada). Sometimes, civil unions are carried forward even after a state accords equal marriage rights (e.g., Hawaii).

12. Cinderella’s Sequel (2) Family Law Menu (b) Designated Beneficiary Laws. Pioneered in Hawaii (1997), Vermont (2000), and Colorado (2009), reciprocal or designated beneficiary laws recognize a cluster of decisionmaking and fiduciary rules for two persons who want to join a mutually supportive relationship, but not a marriage/civil union. Such laws include couples who are not romantic (e.g., caregiving relationships) and are much easier to exit than marriage/civil unions. The Colorado law allows the couple to tailor the legal “rules” to fit their own unitive preferences. Colorado retained DBs when it adopted a civil unions law.

13. Cinderella’s Sequel (2) Family Law Menu (c) Domestic Partnership (Employment Benefit) Policies. Many companies and local governments allow employees to secure spouse-type employment benefits by designating a “domestic partner.” Sometimes, these policies are terminated when Marriage Equality prevails in a jurisdiction, but usually they are not—especially when different-sex partners are included, as they are in most plans. Most important for health care benefits, but not limited to those.

14. Cinderella’s Sequel (3) Family Law and Children (a) Nonsexual Reproduction. Many LGBT couples want to raise children conceived within the relationship. For male couples, this will involve a “surrogate” mother, with moral and legal complications, such as issues of compensation. (Many jurisdictions treat surrogacy skeptically.) For female couples, this will involve assisted reproduction, with a known or unknown sperm donor, also creating moral and legal complications, such as issues of privacy.

15. Cinderella’s Sequel (3) Family Law and Children (b) Polyparenting. LGBT families are more likely than other families to press for legal recognition of more than two parents with legal responsibilities and decisionmaking authority for a child. E.g., two women raise a child borne of a known sperm donor: when disputes arise, some courts have ruled that all three adults have parental rights and responsibilities. Doctrines of paternity, second-parent adoption, de facto parenthood come into play. Query: Are three decisionmakers one too many?

16. Cinderella’s Sequel (3) Family Law and Children (c) Welfare of Children in America. Hillary Clinton’s challenge for Marriage Equality supporters: Devote your energies also to improving the welfare of all children in the country. Many LGBT persons were, or are friends with, dispossessed youths, i.e., left vulnerable, impoverished, often homeless because of family rejection. Millions of young persons in this country are vulnerable for more traditional reasons, i.e., abject poverty, single parent households, neighborhood violence. Clinton-led Children’s Movement.

17. The End Want to Know More? William N. Eskridge Jr. Family Law Pluralism: A Guided Choice Regime of Menus, Default Rules, and Override Rules 100 Geo. L.J. 1881 (2012)