Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships

Same-sex marriage is now a reality across Western countries. While this was a positive achievement for the LGBTQ community, some crucial questions remain unanswered. One of these questions concerns the future of registered partnerships, such as domestic partnerships or civil unions. After the legalization of same-sex marriage, most states are simply phasing such partnerships out.

I argue against this trend. Based on an original analysis of empirical data and case law, I contend that these partnerships retain value for non-traditional families. In fact, states must introduce registered partnerships open to couples regardless of gender, including adult friends and relatives. To support this argument, I present two analyses.

First, I survey empirical research showing that (1) less traditional families, including opposite-sex couples, are signing up for registered partnerships at increasingly high rates, where available; (2) interest in such partnerships is growing even among same-sex couples in countries where same-sex marriage has existed for a long time.

Second, I outline the legal and theoretical justifications for extending same-sex legal partnerships to all couples. To this end, I analyze recent strategic litigation in Europe initiated by heterosexual couples who sought access to registered partnerships reserved for same-sex couples. The analysis allows me to identify three approaches: a status recognition approach, a utilitarian approach, and a choice-based approach.

Ultimately, I offer guidance to groups willing to engage in legal mobilization and to policymakers in crafting a registered partnership that would be suitable for modern couples. Families that do not resemble the traditional marital family model continue to fly under the radar of the law. Resurrecting these laws can fix the problem of their legal invisibility.