Robert Leckey in 'Must Equal Mean Identical'
questions -
the assumption from formal equality that the best way to remedy law's neglect of same-sex couples was to extend to them access to marriage with its existing economic framework. The greater sharing of housework and finances and lesser frequency of child rearing signal the potential unsuitability, in the same-sex context, of rules designed for male-female couples with intense specialization of labour. The paper also flags methodological difficulties with the enterprise of looking to research in order to assess marriage law’s fitness for gay and lesbian couples. The existing social-science research focuses on recognition of same-sex couples by third parties more than on the rightful duties as between partners, particularly on a relationship’s winding down. A better approach might unbundle third parties’ recognition of same-sex spouses from the partners’ duties one to another. Yet given the sway of formal equality, is it even thinkable that the equal status of marriage should presumptively lead, for same-sex couples, to a less onerous property regime?
Leckey comments that -
Formal equality holds that the way to treat gay men and lesbians with dignity and equal respect is to give them access to marriage (or something almost identical under a different label). For legal, political, and social reasons that vary by jurisdiction, this claim for recognizing same-sex relationships has emerged as the champion. Where judicial or legislative efforts carry out formal equality‘s prescription, critique arises from conservative perspectives. It also emerges from feminist, queer or other left viewpoints. One such objection is that same-sex marriage would exacerbate the inequality between more and less privileged members of sexual-orientation minorities. But remarkably little scholarship has studied how well the financial frameworks which govern marriage and divorce, henceforth available to same-sex couples, serve their catchment group. The question of fit should not, however, be taken for granted. An obvious reason is that marriage traditionally bore women‘s economic dependency on men 'embedded deep within' and it is possible that reforms implementing gender neutrality have not extirpated all gendered assumptions.
Nor has much attention been paid, methodologically, to the difficulties entailed by examining the matter. This paper advances work on those neglected matters. ...
This paper presses back against the rhetoric of formal-equality-as-sameness by exploring whether the economic lives of same-sex couples differ from those of different-sex married spouses in potentially relevant ways. By underscoring the distinction between the claim for recognition by third parties and the call for automatic application of existing property rules, it posits that same-sex couples may be situated similarly to heterosexual couples so as 'to deserve the right to marry' without that similarity determining their appropriate patrimonial relations.
A timid reading of the argument might observe that the economic consequences of marriage and civil union can be onerous and that partners should inform themselves in advance. If the regimes on offer are uncongenial, they should conclude a marriage contract within allowable limits! A bolder reading might express regret if the push for gay and lesbian relationship recognition has intensified marital status‘ significance for family law, deflecting policy makers‘ attention from potentially more reliable proxies for intense interdependence such as the presence of children. Has the discourse of formal equality—fused with the unitary view of marriage—forestalled a rethinking of law‘s regulation of the economic dimensions of intimate relations more generally, in a way that would reach beyond same-sex couples to different-sex couples and other kinship configurations? If so, that bodes badly, not only for those for whom the marriage model offered is a poor fit, but also for those whose kinship claims are neither subsumable under formal equality nor articulable as a bid for marriage.
