Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation

A couple of points are worth making at the outset of my argument. First, I speak in this Essay primarily about the extension of benefits to domestic partners, rather than the imposition of duties upon them. That is because this has been the focus of most of the debate about the legal treatment of married and unmarried couples. I readily acknowledge, however, that a fuller debate would consider not only when domestic partners should be given rights, but also when they should assume certain responsibilities. Indeed, as I will make clear, one reason for rejecting certain claims by unmarried couples is that they seek benefits comparable to those available to spouses without corresponding obligations to which married partners are subject. Second, my focus is on the legal treatment of those who are married and those who have the option to marry but do not do so. As I have argued elsewhere, I believe that marriage should be open to partners in same-sex relationships. In the absence of this right to marry, domestic partner legislation is a humane and pragmatic way to recognize the commitment of many of these couples. For this reason, asking how married and unmarried opposite-sex couples should be treated in comparison to one another raises issues different from those that deal with the relative treatment of opposite-sex and same-sex couples. I concern myself in this Essay with the first question, but also suggest how permitting same-sex couples to marry may in fact strengthen, rather than weaken, the privileged position of marriage