Is nonmarital cohabitation a realm of freedom and countercultural choice (think of  Joni Mitchell crooning, around the time Lee and Michelle were cohabiting,  that she and her “old man . . . don’t need no piece of paper from the City Hall keeping us tight and true”) or a realm of vulnerability and possible exploitation (think of how female palimony claimants, in the case law,  often detail their many wifely contributions and sacrifices for their partner and the household)?  Is nonmarital intimacy and sexuality a delicious realm of freedom from state regulation (as in Queer Theory critiques of the quest for same-sex marriage) or a realm of exile from the umbrella of benefits and obligations attached to marriage, with resultant disadvantages and hardships?

Are people not marrying because marriage is of decreasing relevance to society or because they view marriage as out of reach? On the one hand, there is no doubt that the sequence of love, marriage, and the baby carriage is scrambled and even bypassed entirely; more people than ever before, for example, do not marry. Marriage itself is less a marker of maturity as, say, financial independence or holding a job. On the other hand, studies of low-income and working-class men and women indicate that they continue to aspire to the ideal of a happy marriage, but believe that they must attain a certain economic threshold before they marry. Sociologists detail how if, in an earlier generation, marriage was a rite of passage on the way to successful adult life, now, young people may view marriage as the capstone experience — a status that should not be entered into unless many financial prerequisites are in place. This leads to what some diagnose as a class-based marriage gap in which marriage becomes the province of the haves and increasingly out of reach of the have nots. It also leads to a situation in which people may separate becoming a parent from becoming a spouse. I don’t have space here to rehearse the very important sociological literature on this phenomenon and the policy puzzles it raises, but, once again, the issues are complex (I dicuss this in more depth in my book, The Place of Families (Harvard, 2006)). An emphasis in federal governmental policy on promoting “healthy marriage” in the case of unmarried parents seems to be useful in some cases, but not in others (e.g., where there are multiple barriers to stable family life and may also be violence).  A better aim in some cases may be, as Ronald Mincy has argued, meeting families where they are and addressing their array of educational, economic, and social needs,  rather than pushing a model of marriage.

A recent book by sociologist Andrew Cherlin, The Marriage G0-Round, reports that American both marry – and re-marry — and divorce more than most other peoples. Assessing marriage promotion policies, he cautions that,  from the perspective of child well-being, a stable single parent family is better than a child experiencing a succession of new adults entering and exiting the family.  The family form may be less critical than how a family functions, and this suggests caution about viewing marriage as the one-size-fits-all solution. As the Obama Administration considers the federal government’s role in strengthening families, and continues the “healthy marriage” and “responsible fatherhood” initiatives, these issues warrant ongoing and careful attention.

Returning now to the issue of  palimony and the legacy of Mchelle Triola Marvin’s lawsuit, there are genuinely hard questions about the state of nonmarital unions and the state and nonmarital unions. I have argued, in The Place of Families, that developing a registration or civil partnership system, by analogy to various European countries, would afford nonmarital couples a chance to make a formal commitment. The state might offer a menu of options allowing couples to choose the legal consequences of their intimate relationship. This might help to make cohabitation a more stable relationship form. This seems  preferable to imposing economic obligations on partners after their relationship ends, when there is often not evidence of an express contract. (Michelle Triola Marvin, learning from her experience, reportedly did have a legal contract concerning her 30-year cohabitation with Dick Van Dyke.)  The fact patterns typical of many palimomy cases suggest that certain economic vulnerabilities and dependencies often arise in intimate relationships, reminiscent of the classic wifely sacrifice and services in exchange for husbandly support.  In such cases, there is a continuing role for law to play in adjusting the equities between the parties when their relationship ends. But now that “palimony” is in its fourth decade, perhaps it is time to rethink the state of nonmarital unions.

During the Bush Administration (No. 43, that is) promoting healthy marriage emerged as a much-touted cornerstone for welfare reform and as a key to strengthening families. There was bipartisan support for promoting both responsible fatherhood (a big theme in the Clinton Administration as well) and healthy marriage. As a Senator, Barack Obama supported a responsible fatherhood and healthy family bill.  As President, he held a special Father’s Day summit on fatherhood, urging a “national conversation” on “fatherhood and personal responsibiltiy.”  What was striking to me in his remarks and in those of a number of the speakers was the lack on an explicit reference to marriage. Similarly, in his House Agenda on Family, he repeats a oft-used rhetorical phrase: “A strong nation is made up of strong families” and commits himself to “responsible fatherhood,” stating that he knows first hand the “difficulties that young people face when their fathers are absent.”  He has explained that government should support those parents who are trying to do the right thing and hold accountable those who do not. But again, by contrast to the Bush Administration’s rhetoric, marriage is not front and center in this rhetoric.

Nonetheless, marriage is certainly part of the agenda, as a visit to the website of the federal government’s Healthy Marriage Intiative, launched by DHHS’s Administration for Children and Families under President Bush, indicates. Updated to reflect the new Administration, it leads with a statement from Barack Obama’s The Audacity of  Hope, that ”preliminary research shows that  marriage education workshops can make a real difference in helping married couples stay together and in encouraging unmarried couples who are living together to form a more lasting bond.”  Candidate Obama, this quote continues, supports expanding access to such services to low-income couple as a point that should garner agreement. Many of us may encounter various healthy marriage campaigns, funded by partnerships with the federal government, on television, on our daily commutes to work, or browsing on the web. And for those of us who support expanding access to civil marriage to same-sex couples, these promotion campaigns, whatever their merits or flaws, are in disturbing contrast to the federal government’s exclusionary policies.

Given the federal government’s ongoing campaign to promote responsible fatherhood and healthy marriage, and given the prominence of marriage itself in ongoing struggles over who should have access to it, stories about the First Marriage cannot help but suggest a blurring between the political and the private, or the relationship between the White Houses and our houses. Indeed, the author of the New York Times story, Jodi Kantor, observes that “the Obamas mix politics and romance in a way that no first couple quite have before,” and that “the centrality of the Obama marriage to the president’s political brand opens a new chapter in the debate that has run through, even helped define, their union.”ance of healthy marriage.  What is striking, then, to me is that not one word is uttered by either President Obama or the First Lady about promoting marriage as a governmental policy. Rather, in a variant of using the bully pulpit, the Obamas, Kantor observes, seems to be turned their own ”who-does-what battles” in their own marriage into a “teachable moment , converting lived experiences” into a “political message.”

What is the message?:  Marriage is hard work and an ongoing negotiation over role division and who makes sacrifices. The article makes clear that, to date, the costs have been largely borne by Michelle Obama as she resisted, resigned herself to, and then actively supported her husband’s political career. Says the First Lady of the challenges she has faced: “If my ups and downs, our ups and downs in our marriage can help young couples sort of realize that good marriages take work. . . . “  She makes clear that a flawless relationships is “the last thing that we want to project. It’s unfair to the institution of marriage, and it’s unfair for young people who are trying to build something, to project this perfection that doesn’t exist.”   Perhaps this message is not so far from the sorts of marriage education and skills programs being funded by the government.  But what is particularly striking is the emphasis on the challenges the Obamas face in trying to have an equal partnership. The “healthy marriage iniative,” by contrast, avoids an explicit focus on equality as a component of marriage, instead defining “healthy marriage’ as being “mutally enriching” and entailing  that spouses have “deep respect” for each other. (Elsewhere, I have critiqued the federal government’s marriage initiative for failing explicitly to embrace equality as an element of healthy marriage.)

The Obama marriage, so far, has been led by the President’s political ambitions and career. On a recent day, for example, the Internet featured both the stunning news that the President had won the Noble Peace Prize and a “top video” of the week of Michelle Obama’s fitness tips. The video referred to an interview in Prevention magazine, in which she explained that women, particularly mothers, need to give themselves “permission” to care about their own happiness, to take time for themselves. She described her own “aha” moment when she realized the birth of her first child had changed her life, but not her husband’s and how she renegotiated their routines to (to borrow an old phrase from Carol Gilligan) include herself in the circle of care.  For this interview and similar statements about work/life balance, the First Lady has become an inspiration and role model for many women. At the same time, the notion that women have to “give themselves permission,” while men’s lives go on as usual is an all too familiar problem and suggests the challenges that remain for reaching an ideal of equal partnership. But the First Lady observes, at the conclusion of the article that “the equality of any partnership ‘is measured over the scope of the marriage. It’s not just four years  or either years or two,’  . . .  ‘We’re going to be marriage for a very long time.’”

In any case, for the law to be blocked, President Obama would have to sign the joint resolution. Will he do so Although President Obama has stated his personal opposition to same-sex marriage, apparently based on his religious understanding of what marriage is, he has also stated, on the subject of civil rights for LGBT persons,  that America should live up to its “founding promise of equality by treating all its citizens with dignity and respect.” He has said that states should be left free to decide on their own how best to pursue equality for same-sex couples, whether through a domestic partnership, a civil union, or a civil marriage. D.C. initially adopted the strategy of domestic partnership, and expanded the benefits and obligations linked to that status more than once. Now, the City Council will likely approve Catania’s bill, which offers same-sex couples equal access to civil marriage. Domestic partners may elect to retain that status or convert their relationsip to a civil marriage. No new domestic partnerships will be issued. Since the District of Columbia has chosen this strategy of civil marriage, it seems unlikely as well as inconsistent with President Obama’s prior positions on the issue that he would support Congress thwarting the democratic process.

Of course, as has happened in the various states where legislatures have introduced similar legislation, opponents argue that “the people”" should be allowed to decide for themselves. In D.C., this could take the form of a referendum. People used to argue that countermajoritarian courts should not be allowed to foist a new definition of marriage on citizens, and that such matter were for democratically-elected bodies. Now the argument is that lawmaking bodies should not force new definitions of marriage on the people, who should have a say in the matter.

A striking feature of the D.C. bill is that it follows the path of legislation in the New England states that recently opened up civil marriage – a two-pronged focus on equal access to civil marriage, on the one hand, and protecting religious freedom, on the other.  Indeed, Catania’s proposed act is entitled: “Religious Freedom and Civil Marriage Equality Amendment Act of 2009.” This approach clarifies that  civil and religious marriage are distinct, and allowing the former does not force the latter. Undeniably, religious and civil marriage have been and remain intertwined in U.S. family law,  evident from the simple fact that religious oficials may perform a marriage ceremony that, if licensing requirements are met, will have civil effects. But the distinction between civil and religious marriage is important to understanding why access to civil marriage is just and fair as a matter of basic equality or even, as one Council member said, human rights: civil marriage is the gateway to an enormous set of benefits and obligations, access to this basic institution also has symbolic importance. Whether this framing will appease religious opponents of the law remains to be seen. But having this play out in the Nation’s capitol certainly invites the President’s attention to how dramatically the landscape has changed and understandings of equality have evolved in less than one year.