TIME Kentucky

Kentucky Clerk Still Won’t Issue Same-Sex Marriage Licenses

The Supreme Court ruled against her, but Kim Davis cited "God's authority"

(MOREHEAD, Ky.)—A county clerk in Kentucky who invoked “God’s authority” Tuesday for defying the U.S. Supreme Court on gay marriage has been summoned by a federal judge to explain why she should not be fined or jailed for contempt.

U.S. District Judge David Bunning moved swiftly after Rowan County Clerk Kim Davis insisted yet again Tuesday that her religious beliefs prevent her from issuing marriage licenses to same-sex couples. Davis turned several couples away and then retreated into her office, where her door and blinds were closed to the raucous scene outside.

Davis then issued a statement refusing to resign or concede her position.

“To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision,” her statement said. “I was elected by the people to serve as the County Clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience.”

The U.S. Supreme Court declined to intervene Monday night, leaving Davis no legal ground for her continued refusal. Lawyers for couples who were denied licenses asked the judge Tuesday to find her in contempt, but punish her with only financial penalties, not jail time.

“Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform,” they asked Bunning to “impose financial penalties sufficiently serious and increasingly onerous” to compel her immediate compliance without delay.

Rowan County Attorney Cecil Watkins says the federal court alerted him that a hearing is scheduled for 11 a.m. Thursday in Ashland, and that Davis along with her entire staff has been summoned to appear.

As an elected official, Davis can’t be fired; her impeachment would have to wait until the Legislature’s regular session next year or a costly special session.

Davis rejected David Moore and David Ermold’s license request for a fourth time, and then told them to leave.

“We’re not leaving until we have a license,” Ermold said as reporters and cameras surrounded them.

“Then you’re going to have a long day,” Davis told him, and then retreated into her inner office.

From the back of the room, Davis’ supporters said: “Praise the Lord! … Stand your ground.”

Other activists shouted that Davis is a bigot and told her: “Do your job.”

The sheriff then moved everyone out to the courthouse lawn, where James Yates and Will Smith Jr., who were denied a license for a fifth time, left red-eyed and shaking.

“It’s just too hard right now,” Yates said, choking back tears and holding hands as they rushed to their car.

Davis was elected last November as a Democrat, succeeding her mother in the office she had held for 37 years, according to the Morehead News. Her staff includes her son.

Davis stopped issuing all marriage licenses after the Supreme Court legalized gay marriage across the nation in June. Two gay couples and two straight couples sued, arguing that she must fulfill her duties as an elected official despite her personal religious faith. Other couples also sued. A federal judge ordered her to issue the licenses, and an appeals court upheld that decision.

Her lawyers with the Liberty Counsel filed a last-ditch request Friday to the Supreme Court, seeking what they called “asylum for her conscience” that would enable her to continue denying marriage licenses even though she’s lost her case in every lower court.

Justice Elena Kagan, who oversees the 6th district, referred the request to the full court, which denied it without comment.

Amid Tuesday’s developments, two groups lined up on either side of the courthouse entrance to chant at each other.

“At the end of the day, we have to stand before God, which has higher authority than the Supreme Court,” said Randy Smith, leading the group supporting Davis.

Ermold and Moore, together for 17 years, cried and swayed as walked out to chants from the clerk’ssupporters.

“I feel sad, I feel devastated,” Ermold said. “I feel like I’ve been humiliated on such a national level, I can’t even comprehend it.”

The clerk’s husband, Joe Davis, came by to check on his wife. He said she has received death threats but remains committed to her faith and is “standing for God.” As for himself, he said he believes in the Second Amendment: “I’m an old redneck hillbilly, that’s all I’ve got to say. Don’t come knocking on my door.”

He pointed to the gay rights protesters gathered on the courthouse lawn and said: “They want us to accept their beliefs and their ways. But they won’t accept our beliefs and our ways.”

___

Associated Press writer Adam Beam in Lexington, Kentucky, contributed.

 

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TIME Kentucky

Kentucky Clerk Asks Supreme Court to Intervene in Gay Marriage License Case

Kim Davis
Timothy D. Easley—AP Rowan County Kentucky Clerk Kim Davis speaks to a gathering of supporters during a Religious Freedoms Rally on the steps of the Kentucky State Capitol in Frankfort Ky. on Aug. 22, 2015.

Kim Davis pleads for "asylum for her conscience" as she denies marriage licenses to gay couples for religious reasons

(FRANKFORT, Ky.) — Two months after it legalized gay marriage nationwide, the U.S. Supreme Court is being asked by a Kentucky county clerk for permission to deny marriage licenses to same-sex couples.

Rowan County Clerk Kim Davis objects to same-sex marriage for religious reasons. The Supreme Court says the constitution guarantees gay people have the right to marry, but Davis contends the First Amendment guarantees her the right of religious freedom.

She stopped issuing all marriage licenses the day after the Supreme Court effectively legalized gay marriage nationwide in June.

Two gay couples and two straight couples sued Davis, arguing she must fulfill her duties as an elected official. A federal judge ordered Davis to issue the licenses and an appeals court upheld that decision. Davis’ lawyers said they petitioned the Supreme Court on Friday to delay that decision until her appeal is finished, a process that could take months.

Her attorneys with the Christian law firm Liberty Counsel wrote in their appeal to the court that Davis is seeking “asylum for her conscience.”

Justice Elena Kagan, who joined the majority opinion effectively legalized gay marriage in the U.S., will hear Davis’ case.

University of Louisville law professor Sam Marcosson said he believes Kagan will deny Davis’ request based on the court’s earlier decision.

Davis has refused to comply with several court orders in recent weeks, turning away gay couples over and over. She says they could easily drive to a nearby county to get a marriage license. But gay couples argue they have a right to get a marriage license in the county where they live, work and pay taxes.

Davis has said she will not resign her $80,000-a-year job and will never issue marriage licenses to same-sex couples — even if the Supreme Court denies her request.

“If a (same-sex marriage) license is issued with Davis’ name, authorization and approval, no one can unring that bell,” she wrote the court. “That searing act of validation would forever echo in her conscience.”

Her attorney, Jonathan D. Christman, wrote that forcing her to issue licenses is akin to forcing a person who objects to war into the battlefield, or forcing a person against capital punishment to carry out an execution.

Davis cannot be fired because she is an elected official. The Legislature could impeach her, but that is unlikely given that many state lawmakers share her beliefs. The Republican president of the state Senate spoke at a rally last week in support of Davis.

The gay couples that sued her could ask U.S. District Judge David Bunning to hold Davis in contempt. That would trigger another court hearing and would likely include testimony from Davis herself. The judge could then order hefty fines or even put her in jail until she complies with the order.

TIME Kentucky

Kentucky Clerk Must Issue Marriage Licenses to Gay Couples, Appeals Court Rules

Rowan County Kentucky Clerk Kim Davis speaks to a gathering of supporters during a rally on the steps of the Kentucky State Capitol in Frankfort Ky. on Aug. 22, 2015.
Timothy D. Easley—AP Rowan County Kentucky Clerk Kim Davis speaks to a gathering of supporters during a rally on the steps of the Kentucky State Capitol in Frankfort Ky. on Aug. 22, 2015.

Kim Davis could appeal to the U.S. Supreme Court

(FRANKFORT, Ky.) — A federal appeals court has upheld a ruling ordering a Kentucky county clerk to issue marriage licenses to gay couples.

Rowan County Clerk Kim Davis objects to issuing same-sex marriage licenses for religious reasons. She stopped issuing marriage licenses the day after the U.S. Supreme Court overturned state bans on same-sex marriage.

Two gay couples and two straight couples sued her. A U.S. district judge ordered Davis to issue the marriage licenses, but later delayed his order so that Davis could have time to appeal to the 6th circuit. Wednesday, the appeals court denied Davis’ request for a stay.

An attorney for Davis said he was disappointed in the ruling and that Davis could appeal to the U.S. Supreme Court. He said he did not know how Davis would react to the ruling.

TIME Kentucky

Kentucky Clerk Gets Extra Time for Same-Sex Marriage License Appeal

Kentucky clerk same-sex marriage
Timothy D. Easley—AP Rowan County Clerk Kim Davis, right, walks with her attorney Roger Gannam into the United States District Court for the Eastern District of Kentucky in Covington, Ky., July 20, 2015.

Kim Davis is taking her case to a federals appeals court after being ordered to issue a marriage license to same-sex couple

(MOREHEAD, Ky.) — A Kentucky county clerk who objects to same-sex marriage will not have to issue marriage licenses while she takes her case to a federal appeals court.

Rowan County Clerk Kim Davis is being sued by two gay couples. U.S. District Judge David Bunning ordered Davis last week to issue the licenses despite her objections.

On Monday, he granted her request to stay his decision while she pursues her case before the 6th U.S. Circuit Court of Appeals.

Davis has refused to grant marriage license to anyone in Rowan County since the U.S. Supreme Court legalized same-sex marriage nationwide.

TIME Colorado

Colorado Baker Cannot Refuse Service to Same-Sex Couple, Court Rules

Jack Phillips
Brennan Linsley—AP Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his store in Lakewood, Colo. in March 10, 2014.

The court ruled that citing religious beliefs for rejecting service would lead to discrimination

(DENVER) — A suburban Denver baker who wouldn’t make a wedding cake for a same-sex couple cannot cite his religious beliefs in refusing them service because it would lead to discrimination, the Colorado Court of Appeals ruled Thursday.

The decision is the latest victory for gay couples, who have won similar cases in other states. Gay rights supporters and religious freedom advocates have passionately debated whether individuals can cite their beliefs as a basis for declining to participate in a same-sex wedding ceremony.

And it is bound to get more heated after the U.S. Supreme Court legalized same-sex marriage nationwide.

In the Colorado case, Jack Phillips, owner of Masterpiece Cakeshop, declined to make a cake for Charlie Craig and David Mullins in 2012. They were married in Massachusetts but planned to celebrate in Colorado.

After the ruling, Phillips faces fines if he refuses to make wedding cakes for gay couples. Phillips has maintained that he has no problem serving gay people at his store but says that making a wedding cake for a same-sex wedding would violate his Christian beliefs.

His attorneys have said they would consider appealing up to the U.S. Supreme Court. They said there are bound to be more cases where businesses’ religious convictions clash with gay rights.

In recent cases elsewhere, a bakery in the Portland, Oregon, area that declined to make a wedding cake for a gay couple two years ago was ordered to pay $135,000 in damages in July.

Two years ago, the New Mexico Supreme Court ruled that a photographer who wouldn’t take pictures of a gay couple’s 2006 commitment ceremony violated the state’s anti-discrimination law.

And in Washington state, a florist has been fighting a lawsuit filed after she refused to provide services for a gay wedding in 2013.

Phillips’ case started in Colorado’s Civil Rights Commission, where Craig and Mullins filed their complaint. In December 2013, a judge for the commission ruled that Phillips discriminated against the couple and ordered him to change his store policy against making cakes for gay weddings or face fines.

Phillips then went to the Colorado Court of Appeals.

TIME Kentucky

Kentucky Clerk Turns Away Gay Couple Seeking to Get Married

Kentucky clerk same-sex marriage
Timothy D. Easley—AP Rowan County Clerk Kim Davis, right, walks with her attorney Roger Gannam into the United States District Court for the Eastern District of Kentucky in Covington, Ky., July 20, 2015.

Kim Davis has argued that her deeply held Christian beliefs prevent her from issuing licenses to same-sex couples

(MOREHEAD, Ky.) — A Kentucky clerk’s office turned away a gay couple seeking a marriage license on Thursday, defying a federal judge’s order that dismissed her argument involving religious freedom.

Rowan County Clerk Kim Davis’ office turned away David Moore and David Ermold just hours after a U.S. district judge ordered her to do the opposite.

Deputy clerk Nathan Davis says the office was advised by its attorneys with the Christian law firm Liberty Counsel to continue refusing same-sex couples as it appeals the ruling to the Sixth Circuit Court of Appeals.

Kim Davis has argued that her deeply held Christian beliefs prevent her from issuing licenses to same-sex couples. After the U.S. Supreme Court ruled gay marriage bans unconstitutional, Davis stopped issuing licenses to any couple, gay or straight.

Five couples sued her, and U.S. District Judge David L. Bunning on Wednesday ordered her to comply with the Supreme Court’s ruling.

He wrote that her refusal “likely violated the constitutional rights of her constituents.”

Ermold, in a tearful plea, called her actions “cruel” and said they were representative of the continued discrimination faced by gay couples.

In Kentucky, county clerks issue marriage licenses, but someone else must “solemnize” the marriage before the license can be filed with the county clerk. Davis argued that issuing a same-sex marriage license that contains her signature is the same as her approving the marriage, which she said violates her Christian beliefs. But Bunning rejected that argument, saying Davis has likely violated the U.S. Constitution’s ban on the government establishing a religion by “openly adopting a policy that promotes her own religious convictions at the expenses of others.”

“Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do,” Bunning wrote. “However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.”

Laura Landenwich, an attorney for the plaintiffs, said the 28-page ruling reveals that the judge painstakingly combed through each of Davis’ legal arguments and rejected each one. Bunning said that although couples could get marriage licenses elsewhere, “why should they be required to?” He noted the surrounding counties require 30 minutes or one hour of travel and there are many “in this rural region of the state who simply do not have the physical, financial or practical means to travel.”

Bunning said state law does not allow the county judge-executive to issue marriage licenses unless Davis is absent from her job, and Bunning refused to deem Davis absent because she has a religious objection. And Bunning said issuing a marriage license does not constitute speech, saying the marriage license form “does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds.”

TIME Kentucky

Judge Orders Kentucky Clerk to Issue Same-Sex Marriage Licenses

Kim Davis Roger Gannam rowan county
Timothy D. Easley—AP Rowan County Clerk Kim Davis, right, listens as her attorney Roger Gannam addresses the media on the steps of the United States District Court for the Eastern District of Kentucky in Covington, Ky. on July 20, 2015.

Kim Davis stopped issuing marriage licenses to same-sex couples for religious reasons

(FRANKFORT, Ky.) — A federal judge has ordered a Kentucky county clerk to issue marriage licenses to same sex-couples.

Rowan County Clerk Kim Davis was one of a handful of local elected officials across the country that stopped issuing marriage licenses after the U.S. Supreme Court legalized same-sex marriage nationwide in June. She said issuing a marriage license to a gay couple would violate her Christian beliefs and argued the U.S. Constitution protected her religious freedoms.

Two gay couples and two straight couples in Rowan County sued her, asking a federal judge to order her to issue marriage licenses. U.S. District Judge David Bunning ruled Wednesday the couples should not be forced to travel to another county to get a marriage licenses. He said Davis should perform her assigned duties.

TIME Republican National Committee

Republican Committee Quietly Rejects Anti-Gay Marriage Resolution

Repubican National Committee Chairman Reince Priebus pauses as he speaks during the 2015 Southern Republican Leadership Conference May 21, 2015 in Oklahoma City, Oklahoma.
Alex Wong—2015 Getty Images Repubican National Committee Chairman Reince Priebus pauses as he speaks during the 2015 Southern Republican Leadership Conference May 21, 2015 in Oklahoma City, Oklahoma.

The Republican National Committee’s resolutions committee quietly rejected a pair of resolutions critical of homosexuality Wednesday.

The controversial resolutions dealing with sex education and same-sex marriage threatened to cast a shadow on the first GOP presidential debate Thursday in Cleveland, as the party looks toward expanding its base in the key swing state. According to a member of the committee, both failed to gain support to be recommended to the full 168-member party governing body on Friday.

The first resolution, introduced by embattled Michigan national committeeman Dave Agema, would have encouraged “schools that are teaching the homosexual lifestyle in their sexual education class also include the harmful physical aspects of the lifestyle.” The second, which would have encouraged Congress and states to pass laws in an effort to nullify June’s Supreme Court decision legalizing same-sex marriage nationwide, was introduced by Louisiana national committeeman Ross Little, Jr. The Washington Blade first reported on the proposed resolutions over the weekend.

The proposals quickly garnered attention and criticism from the Democratic National Committee and same-sex marriage proponents. The Human Rights Campaign launched a digital ad campaign Wednesday to encourage candidates to support the plaintiff in Obergefell v. Hodges, Ohioan Jim Obergefell.

But the resolutions committee also failed to approve a counter-proposal that would have called for the party to respect differing opinions on the Supreme Court case among its presidential candidates.

Agema was censured by the RNC in January over racist and homophobic social media postings, and RNC Chairman Reince Priebus has repeatedly called on him to resign. But the party says it does not have a mechanism to remove him from his position. Michigan Republican Party Chair Ronna Romney McDaniel condemned Agema’s resolution earlier this week.

According to a person familiar with the resolutions committee meeting, only four resolutions were sent to the full Republican National Committee for a final vote on Friday: one condemning Planned Parenthood amid recent controversial videos about fetal tissue, another condemning President Obama’s nuclear deal with Iran, a resolution on judicial overreach, and a fourth honoring a recently deceased former RNC member.

While it is possible that the resolutions could be offered once again at the general session on Friday, such a move is seen as unlikely, and would almost certainly fail.

TIME Research

Gays and Lesbians Have Different Reasons to Get Married, Study Says

gay wedding men marriage ring
Getty Images

The big differences come down to kids

Same-sex marriage is now legal across the United States, but research on the reasons gays and lesbians get married is sparse. Now, in a recent study published in the journal Demography, a team of researchers looked at earnings and parenting patterns over time among married Swedish couples and found that registered partnership is important to both—but for different reasons.

The researchers looked at and followed Swedish couples who entered into registered partnerships sometime between 1995—the year Sweden approved registered partnerships of same-sex couples—through 2007. (They also analyzed data from 1994 to get a glimpse of life before official partnership.) The 1,381 couples in the study—672 lesbian and 709 gay couples—were entering their first unions and were between the ages of 20 and 64. The authors analyzed demographic data—including annual earnings from the couples, the differences between the earnings of people in the couple and the number of children in each union—for same-sex couples and compared the results to 267,264 heterosexual couples.

Sweden provides an intriguing opportunity to study how policy impacts same-sex marriages; though the country approved registered partnerships of same-sex couples in 1995, it wasn’t until a 2002 law that the country’s registered partners were allowed to jointly adopt children. (Swedish law dictates that married couples can only adopt jointly, thereby making it impossible for one partner to adopt without the other if the two partners are married.)

The authors found that gays and lesbians got married for very different reasons. Most gay couples entered their union without kids, and that number remained close to zero after marriage; the authors concluded that “the main function of registered partnership for gays is resource pooling,” they write in the paper. “For lesbians, on the other hand, the right to joint or step-parent adoption allowed in 2002 raised fertility and possibly entry into partnership.”

In other words, gay couples were more likely to get married to combine incomes and resources; lesbians tended to use marriage as a stepping stool towards creating a family, further emphasized by a spike in lesbians registering for marriage in 2002, the year when joint adoption was made legal.

The decision to have children is likely a large factor responsible for these differences, said Lena Edlund, an associate professor at Columbia University and one of the economists involved with the study. “I think the asymmetry results from a much greater difficulty male couples have in finding children that they can parent jointly,” she said in an e-mail. “It is also possible that male couples have a lower desire for joint children.”

For same-sex couples, adoption laws often lag behind marriage recognition laws—as they do in many states in the United States and did in Sweden. Having kids is especially expensive for gay mean, who need to find an egg and a gestational carrier—a problem lesbian couples don’t have.

Perhaps most intriguing is the role education plays in determining mates. In heterosexual marriages, assortative mating—choosing a partner more like oneself—is often at play, where partners are matched on an education level, according to economist Gary Becker’s A Theory of Marriage. A person with a master’s degree would partner with someone with at least a master’s degree; the theory states that it’s unlikely that this person would find common ground in parenting style and life philosophy with a person with a high school education.

What’s astonishing about the new research is that it showed that lesbian couples are often not as assortatively matched as heterosexual couples, or even gay men. For lesbians, an already thin marriage market means that education might not necessarily play a role in finding a mate so much as finding a partner who is equally as interested—or not—in raising children, Edlund said.

The concept of specialization also seems to play a lesser role in lesbian marriage compared to straight marriages. In a typical heterosexual marriage, the combination of having children and unequal pay means that partners are more likely to specialize, the study notes; the partner who earns less will stay at home with the kids, for example, while the partner who earns more acts as the breadwinner. In the Swedish sample, a higher percentage of lesbian couples remained on the labor force together and, in some instances, having their incomes nearly match after marriage.

The results of the study can only provide insight into the Swedish experience of same-sex parenting, which may differ from that in America, Edlund said. “American individuals and couples have greater access to fertility treatments and sperm banks,” she said. “There are also more American couples who can afford a surrogate mother.” Swedish couples, regardless of orientation, have access to healthcare and childcare options that the American couples don’t necessarily have, which would probably play into labor market options for partners, the study notes. But what can be said for sure is that, like any heterosexual marriage, marriage has consequences far more complex than simply signing a piece of paper.

TIME politics

What It Means When Marriage Is a Contract

Gay Marriage Religious Liberty
Jacquelyn Martin — AP A man holds a U.S. and a rainbow flag outside the Supreme Court in Washington after the court legalized gay marriage nationwide.

The Supreme Court's landmark decision on same-sex marriage has put the issue of love and contracts front and center

Amidst jubilation from some, consternation from others, and against the backdrop of over 26 million rainbow profile pictures on Facebook, the impact of the Supreme Court’s 5-4 decision in Obergefell v. Hodges granting same-sex couples rights to marry under the Fourteenth Amendment continues to unfold. Perhaps the most-quoted passage from Justice Anthony Kennedy’s opinion for the majority has been its final paragraph, which concludes: “Their [the petitioners’] hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

If you have studied the history of marriage, however, it’s likely the first sentence of Kennedy’s last paragraph that stands out to you. “In forming a marital union,” he writes, “two people become something greater than once they were.” This formulation of matrimony, while it confirms our contemporary understanding of romantic love, doesn’t reflect the institution’s decidedly complex and unromantic historical legacy, something Martha Ertman, Carole & Hanan Sibel Research Professor at the University of Maryland School of Law, reckons with in Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families. Her book blends a memoir of her own experiences building a family by contract with her analysis of family law and contracts that underpin adoption, cohabitation, the use reproductive technology, and—most of all—marriage.

These “deep structural transformations” of marriage—as Ertman describes them—“recognize or reflect the fact that it changes over time.” In Love’s Promises, she illustrates the contrast between marriage past and present by comparing the experiences of first ladies Martha Washington and Michelle Obama to show how much the institution has evolved. Far from making “two people something greater than they once were,” for example, 19th-century marriage followed the common-law rule of coverture, which collapsed two people into one person: the husband. Under coverture, a wife was legally invisible after her marriage, in large measure because she could no longer enter into contracts. Not to mention the “breach of promise to marry” suits brought in response to broken engagements; they so clogged the 19th– and early 20th-century legal system that courts were obliged to rule that engagements were not legally binding contracts in order to get relief.

These detrimental but undeniable historical connections between marriage and contracts are a far cry from today’s world, where many people seek to deny any relevance between the two at all. The resistance to making contracts a part of family life—parenthood, cohabitation, and marriage—mystifies Ertman, who views contracts not as cold or calculating but as deeply expressive and potentially beneficial ways of affirming choices and validating contributions within any close relationship. In Love’s Promises, she argues that the law should recognize both the formal relationships codified by contract and those—like less conventional forms of parenthood and cohabitation—tailored informally by what she calls “deals”—arrangements about the more personal back-and-forth about who does what that define each relationship on its own terms.

“Maybe it’s because I teach contracts,” Ertman told Breadwinning and Caregiving Program Director Liza Mundy at a recent event at New America, but “it’s odd in my mind that you share a share a bathroom, you share a bed, and yet you can’t talk about who’s on the lease? There’s something really odd about closing your eyes, crossing your fingers, and hoping it’s all going to be all right.”

“Without contracts, I wouldn’t have a job, but I also wouldn’t have a family,” Ertman—who came out as gay in the 1980s—explained. A co-parenting agreement and some reproductive technology helped her create a family with her son and his father, a close gay male friend. A marriage contract and an amended parenting agreement expanded Ertman’s family to include her wife. At each step along the way, Ertman recalled, “we talked about what we thought and expected and wanted to give and get from this arrangement…I think that’s part of why it’s going well.”

Our collective discomfort with talking in detail about the give-and-take of a relationship and our hesitation to put our expectations in writing can lead to a number of legal complications. Among the most damaging is the unwillingness on the part of individuals and the courts to clarify the stakes of what Ertman calls pair-bond exchanges—in which one member of the relationship does a bigger share of the caregiving in exchange for greater financial support from the other member of the relationship. “I think when we mask the value of homemaking labor that does bad social things,” Ertman cautioned, “because it takes power away from people who are already disempowered.”

Citing stories described in her book, Ertman argued that courts are wrong to treat the caregiving work done for their partners by women and men (everything from childcare to eldercare) as a gift of love; she says it injures us as a culture to assume that “because it’s impossible to put a precise figure on it, we’re going to assume that all that work was basically worth nothing.” Sun Bonds, former wife of Barry Bonds, received no portion of his earnings in their divorce although he presumably benefited from her homemaking labor while they were married. Ertman also brought up the case of Harold, a Florida resident who nursed his partner Loretta on her deathbed with cancer, but because they’d done “everything but the vows,” her family took their joint property after her death. Harold sued, but was not compensated for either the time or his own money (including an inheritance) that he sacrificed for Loretta’s health. Ertman’s question is: do we really want to live in a society that says Harold’s caregiving role has no value?

“My hope in writing Love’s Promises is to make an argument for moral neutrality” around marriage, Ertman told Mundy and the audience. “Instead of coming from nature or God,” she emphasized, “I would say that families and love come in different packages.” Though still processing her reactions to the ruling as both a lesbian and a law professor, Ertman sees the Obergefell decision as to some degree making her book’s goal a reality: “to recognize that marriage is a human institution; it doesn’t come in one shape that fits everybody.”

She marvels at the reactionary language used by the dissenting justices and the ramifications of their worldview on other aspects of gender equality. “If marriage is about one man, one woman, then someone has to be the man, the woman,” she says, dismissing the idea that creating a legal imprimatur for traditional gender roles should—or even could—force adherence to a “one-size-fits-all” approach to family. She worries too that the consequences of Obergefell could be to replace one moral absolute—that homosexuality is unnatural and gays do not deserve constitutional protections—with another—“equally morally charged”—imperative of marriage as an absolute social good, to the exclusion of other kinds of relationships. She does, however, see potential for aging single Baby Boomers to keep institutions like civil unions and domestic partnerships vital as they look to build long-term companionship with fewer entanglements for their adult children.

Her evaluation of the post-Obergefell legal landscape is that it could spark what legal scholar Derrick Bell called “interest convergence” between gays and other groups and create models for future progress for “rights and duties about parenthood” that could include “efforts to recognize more than two parents.” In the arc of history from the 1986 Supreme Court ruling in Bowers v. Hardwick (which upheld the rights of states to make laws criminalizing homosexual encounters) to Obergefell, we can see the law as Ertman does: as a vehicle of expression for who we are and want to be as a society. Ertman sees this arc as evidence of what 19th-century (coverture-era) British jurist and legal historian Sir Henry Maine theorized as law and society’s move “from status to contract”—toward a modern world in which individuals are free to make contracts and form associations according to their own choices.

Jane Greenway Carr is an ACLS Public Fellow and Contributing Editor at New America. She holds a PhD from NYU and is the editor of The Brooklyn Quarterly. Follow her on Twitter @janegreenway.

This piece was originally published in New America’s digital magazine, The Weekly Wonk. Sign up to get it delivered to your inbox each Thursday here, and follow @New America on Twitter.

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