Nancy Polikoff is the author of Beyond (Straight and Gay) Marriage, she is also a professor of law at the American University Washington College of Law. Recently QBliss Senior Editor interviewed this incredible author, Below is part one of The QBliss Interview With Nancy Polikoff.

Part 1:  (Added 3/27/08)

C. J. Neumann: First off, tell us a little bit about yourself.

Nancy Polikoff: I have lived in Washington, D.C. my entire adult life.  I went to law school here and I stayed here and have been working on family law and gay and lesbian issues since roughly 1973 when I was in law school.

CN: What made you decide to write this book?(Beyond (Straight and Gay) Marriage)

NP: I discovered that a generation of you adults, including all of my law students had grown up never knowing that the gay rights movement had once been part of a chorus of voices in support of diverse family structures.  Instead they thought that the only significant family issue for gay and lesbian people was access to marriage and that the only thing wrong with marriage was that people didn’t have access to it.  I wanted to tell this history of the development of the gay rights movement and its relationship to family issues.  And then in terms of speaking of what’s going on today, I wanted to take the examples that are often used to support access to marriage for same sex couples and demonstrate that those needs can be met for same sex couples and lot of other people by changing the laws so that marriage doesn’t get the special rights that it has today.  That’s what drove me to do it.

CN: I recall that you cited some examples of case law that shows a trend of a broader definition of marriage and family.  It seems that the definition of marriage and family has become more diverse, but that public opinion has not caught up.  Why do you think that is?

NP: I think that we have had, really starting back in the mid ’70’s a backlash that included a lot of the changes that gay rights, feminism, and reproductive rights.  That backlash morphed to into a marriage movement that really has pervaded popular consciousness with this idea, which is false,  that the decline of life-long heterosexual marriage is responsible for all of our social problems; poverty, crime, substance abuse, illiteracy, homelessness, chronic illness, infant mortality, I could go on.  In fact, I think that they, especially in the last years with the Bush administration, pushing marriage promotion, spending $750 million dollars of taxpayer money, which could otherwise fight poverty and real social problems with marriage promotion.  I think that idea is out there that marriage is essential to a functioning society so anything that is not marriage looks suspect and problematic, something that we want to turn our backs on.

CN: What is the differences between marriage, civil unions, and domestic partnership in your opinion?

NP: Marriage is a very well known concept.  Civil unions and domestic partnership are terms that have to have content built into them by whatever it is that creates them.  I mean whatever they say it means.  Domestic partner is used in the context of grants and benefits.  I think that one of the ways that those three things are tied together these days is that as we know in Massachusetts they allow same sex couples to marry and there are a hand full of states that have  extended all of the legal consequences of marriage to same sex couples who enter what they call a civil union in New Jersey or Vermont [and Connecticut] for example and domestic partnership in California and New Hampshire, those are the only ones that have all of the state based consequences of marriage that go to same sex couples who enter into those statuses.

CN: Do you feel that it should be the states or the federal government that should define marriage and family?

NP: Family law is the province of states, that is the way that it always has been, so there are ways that the federal government does get involved but certainly the rule of who can get married has always been set by individual states.  That is why if the Federal government does decide to step in this area, specifically on the side of who can marry; it’s going to have to do it in a constitutional amendment.  Of course congress has stepped in with the Defense of Marriage Act (DOMA) to say that federal laws won’t recognizes gay and lesbian couples even if they are married in their states for federal law purposes.  Other states don’t have to recognize other marriages, which applies to Massachusetts, but the congress could not define marriage for the states, that is the law.

CN: With issues like DOMA, what do you think the chances are that same sex couples will have the same status as heterosexual couples?

NP: If we get a democratic president in office I think that the part of DOMA that says the federal government will not recognize same sex couples who are married in their state I think that there is a strong chance that it will be repealed.  Both democratic frontrunners are committed to doing that.  If we have a democratic congress I think that we will be able to do that.

CN: It seems that men and women that were married many years ago up until about the ‘60’s, it seems that the woman was almost the “property” of the man.  When do you think this changed?  Was it in the ‘60’s or earlier?

NP: It actually changed in the middle of the 19th century, because the law used to be that the husband was the one and the wife did loose her legal identity entirely.  That began to change with some laws passed in the middle of the 19th century allowing married women to own property.  So that was the beginning of the change.  Up until the middle of the 20th century, thru the ‘60’s, ‘70’s, and even up to the ‘80’s in some places, there were laws that delineated the roles of a husband and a wife that were very sex specific.  They often included the husband had the right to decide where the couple lived, the husband having control over property even over property that came to either spouse during the course of marriage.  Those laws have to be struck down by the Supreme Court  as unconstitutional and that started in 1971, but it really took a decade to see the sex based laws of marriage become what we basically have today, which is equality for men and women.

Part 2: (Added 3/29/08)

CN: For those who have not read the book yet, what is the take home message that you are trying to convey to the reader?

NP: While access to marriage, marriage equality for same sex couples is a good civil rights fight because it’s about equality.  Equal access to military service, equal opportunity to work without discrimination and equal access to marriage are all good equality goals for the gay rights movement.  But what I am trying to show in this book is that as a matter of family policy marriage is the wrong fight. We ought to be looking at the needs of all LGBT people in the various forms that families and relationships in which they live and at the same time, the forms and type of relationships that straight people have.  The way to do that is thru removing the special rights that attach to marriage and asking ourselves that looking into individual laws that do privilege marriage, why does this law exist?  For example, the purpose of a law could be to compensate for the loss of an economic provider who has died or left the family unit, then we ought to be accomplishing that purpose by extending a benefit to someone who was dependant on the person who died.  What I am excited about in this book is that I was able to find a number of examples in the law today that I was able to put together and say; hey, look!  This is a roadmap to get the rights that we want and need for all LGBT people.  Single, coupled, paired in a family unit that is not based on a sexual relationship, people who are raising children together, or people who are defining their lives in so many ways.  I think that we can do that, and I was so excited to find that there are examples of places where these laws exist today.

CN: What can we do as individuals and a community to further this goal of equality?

NP: I think that we can do, and in many states we have to do it, because we have 26 or 27 states that have constitutional amendments that ban access to marriage to same sex couples.  More than half of those ban recognition of partners straight or gay and we have yet another 15 or so states that have statutes that ban access to marriage to same sex couples.  What we need to do is turn to the gay rights groups in those states and equip them with the ideas, the legislative agenda, and the money to work in coalition with other groups that would be interested in those reforms.  I believe that there are many of them to try to get some of the laws that I talked about in the book passed.  I am excited that things I suggest are things that we can do in states that have these constitutional amendments because they don’t involve marriage and they don’t involve couples.  They involve family law working for everybody.  I am also excited that in states that are more progressive from a point of view to gay rights.  We shouldn’t be stopping at equality goals, we shouldn’t be looking just after the gay couple who choose to register their relationships or marry, we should try to meet the needs of a much wider range of LGBT people.

CN: On a little more personal note, if you had to write the book again, is there anything that you would change?

NP: I think that it is too soon to answer yes to that since it is such a recent book.  I think that it really does reflect what it is that I believe and hopefully we will be moving towards.  I would update it since it is ever changing so I would have some more examples to give and talk about, but I am happy about the book.

CN: What was the most difficult part about writing this book for you?

NP: It was difficult for me to write the book in spite of the fact that writing is part of what I do as a law professor.  It does not come to me that easy to me and my partner can testify to the late nights and early mornings, and my inability to talk about anything else for months at time.  It wasn’t easy to write, and sometimes it was not easy to stop doing research and get myself to sit down and write because I found the research fascinating.  I was uncovering more and more great examples like the one I give in the book about Harvey Milk’s surviving partner receiving workers compensation death benefits and that really blew me away.  That was in 1978.  He was the first openly gay elected official in a major U.S. city and he was a community leader at the time and of course he is a gay icon now.  He was assassinated by a former San Francisco supervisor, and his surviving partner received death benefits.  Today, if you look at something like the World Trade Center September 11th disaster, the same sex surviving partners were not able to get these benefits.  Their stories were told as examples of why same sex couples should have access to marriage, but it turns out that Scott Smith and Harvey Milk were not married in 1978, they weren’t even registered as domestic partners then which was a status that was not yet invented  in 1978.  Harvey Milk’s surviving partner got these benefits because you don’t have to be married in California to get them.  If somebody is a member of your household who is economically dependent in a wage earner who dies, dependant in whole or in part, that person qualifies for these benefits.  So if the World Trade Center would have been a land mark in Los Angeles, all of those surviving same sex partners would have received those death benefits.  It was heart stopping to come across that example and I  was just floored that 30-years ago, there was in place a policy for death benefits that is right on, because what it does is compensate for an economic provider.  If you are trying to do that, marriage doesn’t matter.  I did as much digging as I could and I put those examples in the book, but I ultimately had to sit down and write the words on the page.

CN: It was very satisfying in the end I’m sure…

NP: Yes, it was very satisfying to have it finished and I am happy to have it out there, getting good feedback and the reception that it is getting.

CN: What was the most surprising thing that you learned about yourself when writing this book?

NP: How hard it was going to be.  Because I had written quite a bit I knew that it would take me some time, but it was very difficult experience for me and much harder than I thought it would be.

CN: Do you have any other final thoughts you would like to leave with us?

NP: I’m so excited to reclaim this history for people who don’t have it and to offer people who have been thinking only about marriage equality; another way to think about protecting the needs of everybody in our community.  The number one reason that the same sex couples were the plaintiffs in the litigation around the country give for why they want to marry, the reason that come up the most frequently is because they worry about what happens if they become hospitalized and they want their partners to visit and make medical decisions.  This is the example of a very real problem.  The stories are legendary, there are way too many of them, they keep happening, so this is a real problem for same sex couples.  It is also a problem for LGBT people who aren’t in couples, who want to make sure that the person that they want can make the decisions.  It is also a problem for straight people.  There are studies that show that married people don’t always pick their spouses.  There was a study that shows that 50% of the people did not pick their spouses!  I also talk in the book about advance healthcare directives registries.  Idaho has one of the best ones, again an unlikely place, to find a model for the gay community.  I am committed to solving the problem that same sex couples have and that all LGBT in all their forms of family or relationships have, and I don’t think that marriage will solve those problems and I hope that this book will show  a different way to do it that will value all families.  That is why I named the book like I did.  Oh, one more thing, the book has a website, www.beyondstraightandgaymarriage.com.  I would love for people to visit the site.  I have some appearances coming up so for those who are going to be near me I would like to invite everyone to attend.

CN: I appreciate your time, thank you for talking to us.

NP: Thank you.

Click Here For Our QBliss Book Feature: Way Beyond Marriage, Valuing Everyone!