Amatonormativity in the Law: An Introduction

Photo by Sandy Millar on Unsplash

Silver Flight, Associate Member, University of Cincinnati Law Review

I. Introduction: Amatonormativity

The term, “amatonormativity,” was coined by Elizabeth Brake in 2012 to describe “the assumptions that a central, exclusive, amorous relationship is normal for humans, in that it is a universally shared goal, and that such a relationship is normative, in that it should be aimed at in preference to other relationship types.”[1] Essentially, amatonormativity is the widespread belief that every person wants a romantic partner, that one’s romantic relationship with their partner is the most important relationship in their life, and that anyone who does not have a romantic partner should be trying to get one.

Amatonormativity also relates to singlism, which is the “pervasive negative stereotyping of single people.”[2] Married people are often seen as more mature and stable, while single people face stereotypes of being immature, self-centered, and lonely.[3] They “are seen as lacking a sense of responsibility as well as having empty lives.” [4] Evidence has shown that single people face legal and social discrimination, yet it is often seen as more legitimate and acceptable than other types of discrimination.[5]

Brake also argues that by privileging romantic relationships, amatonormativity discourages individuals from forming stronger relationships with friends, by pressuring them to choose to focus on romantic relationships rather than pursuing other friendships.[6] However, “significant friendships, including groups of adults and shared child-rearing relationships, appear in the gay and lesbian community, African-American and Latin-American communities, among seniors, and unmarried urbanites.”[7]

Amatonormativity affects everyone, but it is especially relevant for asexual people,[8] aromantic people,[9] and polyamorous people.[10] This paper will give a brief and broad overview of amatonormativity in the law, amatonormativity in the same-sex marriage debate and eventual Supreme Court decision, and a few of the many suggestions scholars and organizations have put forth for the future of relationship-based law.

II. Amatonormativity in the Law

Amatonormativity appears in the law when it deals with government-recognized romantic relationships, such as marriage. In U.S. federal law alone, as of 2003, there were “1,138 federal statutory provisions . . . in which marital status [was] a factor in determining or receiving benefits, rights, and privileges.”[11] This does not include “[l]aws concerning property, inheritance, and divorce,” which fall under state law.[12] This section will present some examples of how marital status affects how the law applies to individuals.

Marital status affects taxes. Gifts past a certain dollar amount are generally taxable, but married people do not have to pay taxes on gifts they give to their spouse.[13] For income taxes, marriage and joint filing tends to benefit middle- and upper-class individuals more than lower-class individuals. For example, when one spouse earns more than the other spouse, they may be taxed less than if they were unmarried and taxed individually.[14] However, for low-income individuals, marriage may penalize them by pushing them into a higher tax bracket than they would be individually.[15] Additionally, the Supplemental Security Income (SSI) program for elderly or disabled individuals provides less money to individuals based on marital status, meaning that individuals may risk losing all or part of their SSI if they get married.[16]

Individuals may also lose access to Medicaid health insurance if they get married.[17] However, married adults, including same-sex couples, are more likely than single adults to have employer-sponsored or private health insurance.[18] This is one way that the legalization of same-sex marriage extended legal benefits to some LGBTQ+ people who were able and willing to marry. Many employer-sponsored health insurance programs provide “significantly higher benefit packages when these include spousal health insurance at a reduced rate, while unmarried persons receive no opportunity to purchase health insurance for a friend.”[19]

Housing and residential zoning laws are affected by marital status. Housing discrimination against the unmarried “is legally permitted in the United States, and is official government policy in military housing.”[20] Although “[t]he Federal Fair Housing Act prohibits discrimination on the basis of ‘familial status’, which pertains to the presence of children under age 18, [the law] is silent on marital status,” and “about half the states are silent” on marital status discrimination in housing.[21] In a 2007 study about attitudes toward choosing rental tenants, “participants in multiple experiments favored married couples over various types of singles and failed to recognize such differential treatment as discrimination.”[22] There are also “residential zoning laws limiting numbers of unrelated cohabitants.”[23]

Marital status affects child custody and parenting rights. Under amatonormativity, marriage, marriage-like relationships, or children tend to signal family, “[b]ut while single parents and married or ‘common law’ parents are recognized in law, extended-family or friend parental groups tend to remain invisible.”[24] About half the states have laws that “nonparents lack standing to seek contact with a child over parental objection if the child’s parents are in an intact marriage.”[25] Additionally, laws affect whether someone can be a co-parent if they are not in a romantic relationship with the other parent,[26] and whether a family can have more than two co-parents.[27]

Finally, another important way that marital status affects individuals is asset distribution for those who die without a valid will. In this case, assets are generally passed to the next of kin, which would include a spouse or children. If a person does not have a spouse or children, their assets would go to other relatives, or if they do not have other relatives, to the state. Therefore, there is not an option for assets to go to an individual’s close friends without a valid will, and surveys estimate that more than half of Americans do not have one.[28]

III. Amatonormativity and Obergefell

In Obergefell v. Hodges, the Supreme Court held that same-sex couples have a fundamental right to marriage under the Fourteenth Amendment’s Due Process Clause.[29] In the majority opinion, Justice Kennedy emphasized principles that demonstrated that marriage was a fundamental right under the Constitution, including that marriage “supports a two-person union unlike any other in its importance to the committed individuals,”[30] that “[w]ithout the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser,”[31] and that “marriage is a keystone of the Nation’s social order.”[32] The Court noted that “[s]tates have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order” and that marriage has been linked to a “constellation of benefits.”[33] Amatonormativity is clear in the Obergefell opinion where it characterizes marriage as the ultimate, most important, two-person union, essential for stability for families and children, and fundamental for the order of the nation. The opinion states that “[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”[34]

Queer theory “point[s] out the dangers of ‘normifying’ any particular way of life because it marginalizes those who will not, or cannot, assimilate into the dominant culture.”[35] Cyril Ghosh argues that in Obergefell, the Court “makes what appears to be a strategic use of amatonormative language to deliver an emotionally charged appeal for marriage equality that is presumably intended to cut across ideological and other divides,”[36] and that “the opinion endorses a particular, assimilationist, conception of the good intimate life.”[37]

The opinion emphasizes that same-sex couples, “far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities.”[38] In fact, “[i]t would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.”[39] In the Court’s opinion, same-sex couples are allowed to take part in the institution of marriage because instead of disrespecting or destroying marriage, they will assimilate and behave just like different-sex couples. Therefore, same-sex marriage is allowed because it fits into the Court’s idea of a good intimate life. Many queer scholars have criticized activists’ emphasis on marriage equality for prioritizing assimilation rather than encouraging questioning of how the government ties legal benefits to marital status.[40]

IV. Amatonormativity and the Future

Scholars have challenged the role of the government in marriage and suggested various alternatives for “getting beyond marriage or conjugality, or privatizing marriage, or abolishing marriage, or maintaining the separation of church and state.”[41] For example, some want “government and private institutional recognition of diverse kinds of partnerships, households, kinship relationships and families” including “access to a flexible set of economic benefits and options.”[42] Nancy Polikoff writes, “Laws that value all families are not primarily about legitimating gay relationships that mirror marriage. They are about ensuring that every relationship and every family has the legal framework for economic and emotional security.”[43] Elizabeth Brake describes a framework where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and what rights and responsibilities to exchange with each.”[44]

Scholarship on how polyamorous people might attain the legal rights currently bestowed by marriage is also helpful in considering a future legal framework. Following the trajectory of legalized same-sex marriage, some have argued that polyamory should be considered a sexual orientation and that relevant laws should receive heightened scrutiny.[45] However, scholars have raised concerns that positioning polyamory as a sexual orientation, or thinking of it as a personality type rather than a behavior, would raise gatekeeping questions about who does or does not legally count as polyamorous.[46]

Additionally, “[p]oly marriage would face the same problem as same-sex marriage in that it will not capture those who either cannot or do not want to marry.”[47] Reflecting on Polikoff’s and Brake’s proposals for the future of marriage law, Christian Klesse writes that a better option would be a “multi-tier approach that aims to legally support family functions (such as, for example, parenting and care work) rather than a rigidly defined relationship status.”[48] Rather than managing interpersonal relationships, legal benefits could be separated from marital status, and laws could be directed to support family functions for all types of families and care networks.

V. Conclusion

Amatonormativity is clearly represented in both social and legal realms. It is implicated in laws that are affected by marital status, and in opinions by the Supreme Court. However, it often goes unnoticed, taken as natural and universal. As activists work toward attaining civil rights for LGBTQ+ and polyamorous people, it is essential to keep amatonormativity in mind and consider whether we are assimilating into a system in a way that limits us or whether we are challenging the norms to fight for a better world for all of us.

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[1] Elizabeth Brake, Minimizing Marriage: Marriage, Morality, and the Law 88-89 (2012) (emphasis in original).

[2] Id. at 92-93.

[3] Bella M. DePaulo & Wendy L. Morris, The Unrecognized Stereotyping and Discrimination Against Singles, 15 Current Directions Psych. Sci. 251, 252 (2006).

[4] Brake, supra note 1, at 92-93.

[5] Id.

[6] Id. at 100.

[7] Id. at 91.

[8] Asexual people experience limited or no sexual attraction. Asexual people may or may not be aromantic. About Asexuality, The Asexual Visibility and Education Network https://www.asexuality.org/?q=overview.html (last visited Apr. 12, 2022).

[9] Aromantic people experience limited or no romantic attraction. Aromantic people may or may not be asexual. FAQ, Aromantic-spectrum Union for Recognition, Education, and Advocacy, https://www.aromanticism.org/en/faq (last visited Apr. 12, 2022).

[10] Polyamory “refers to romantic love with more than one person, honestly, ethically, and with the full knowledge and consent of all concerned.” Loving More Polyamory Frequently Asked Questions, Loving More Nonprofit, https://www.lovingmorenonprofit.org/home/polyamory/faq/ (last visited Apr. 12, 2022).

[11] Brake, supra note 1, at 158-59 (quoting U.S. Government Accounting Office, Defense of Marriage Act: Update to Prior Report, GAO-04-353R, at 1 (Jan. 23, 2004) https://www.gao.gov/products/gao-04-353r).

[12] Brake, supra note 1, at 159.

[13] Frequently Asked Questions on Gift Taxes, Internal Revenue Service https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes (last visited Apr. 19, 2022).

[14] Federal Income Taxes, Unmarried Equality, https://www.unmarried.org/federal-income-taxes/ (last visited Apr. 12, 2022) (“In sum, bonuses benefit married couples with so-called ‘provider/dependent’ marriages. Penalties hurt low-income couples, and well-off married couples with balanced incomes.”).

[15] Id.

[16] Richard Balkus & Susan Wilschkle, Treatment of Married Couples in the SSI Program, Social Security Office of Policy (Dec. 2003), https://www.ssa.gov/policy/docs/issuepapers/ip2003-01.html. Couples are also limited to only having $3,000 total in countable resources at any given time, while unmarried individuals on SSI are only limited to $2,000 each. Id.

[17] What Happens When Persons Living with Disabilities Marry?, Special Needs Alliance (June 2010), https://www.specialneedsalliance.org/the-voice/what-happens-when-persons-living-with-disabilities-marry-2/.

[18] Eva Elton & Gilbert Gonzales, Health Insurance Coverage and Access to Care by Sexual Orientation and Marital/Cohabitation Status: New Evidence from the 2015–2018 National Health Interview Survey, 41 Population Res. Pol’y Rev. 479, 480, 489 (2022).

[19] Brake, supra note 1, at 94.

[20] Id. at 94.

[21] Housing, Unmarried Equality, https://www.unmarried.org/housing/ (last visited Apr. 12, 2022); 42 U.S.C.A. § 3602, § 3604.

[22] Wendy L. Morris, Stacey Sinclair & Bella M. DePaulo, No Shelter for Singles: The Perceived Legitimacy of Marital Status Discrimination, 10 Group Processes & Intergroup Relations 457, 457 (2007).

[23] Brake, supra note 1, at 94.

[24] Id. at 91.

[25] Barbara A. Atwood, Marriage as Gatekeeper: The Misguided Reliance on Marital Status Criteria to Determine Third‐Party Standing†, 58 Fam. Ct. Rev. 971, 971 (2020).

[26] Bella DePaulo, Comprehensive Unmarried Equality Must Include Parental Rights for Friends, Unmarried Equality (Mar. 30, 2017) https://www.unmarried.org/featured/comprehensive-unmarried-equality-must-include-parental-rights-for-friends/.

[27] Diana Adams, What Polyamorous & Multi-Parent Families Should Do to Protect their Rights, The National LGBTQ+ Bar Association (2018), https://lgbtqbar.org/bar-news/what-polyamorous-multi-parent-families-should-do-to-protect-their-rights/. See also, E.J. Dickson, Poly Parents Are Losing Custody of Their Kids in Brutal Divorce Battles, MEL Magazine (2019), https://melmagazine.com/en-us/story/poly-parents-are-losing-custody-of-their-kids-in-brutal-divorce-battles (illustrating how one parent’s polyamorous status is used against them by the other parent in divorce custody battles).

[28] More Than Half of American Adults Don’t Have a Will, 2017 Survey Shows, Caring.com, https://www.caring.com/caregivers/estate-planning/wills-survey/2017-survey/ (last visited Apr. 19, 2022); 2022 Wills and Estate Planning Study, Caring.com, https://www.caring.com/caregivers/estate-planning/wills-survey/ (last visited Apr. 19, 2022).

[29] Obergefell v. Hodges, 576 U.S. 644, 645 (2015).

[30] Id. at 646.

[31] Id.

[32] Id.

[33] Id.

[34] Id. at 681.

[35] Cyril Ghosh, Obergefell v. Hodges: Marriage Equality’s Insistence on Family Values, in De-Moralizing Gay Rights 43, 43 (2018).

[36] Id. at 47.

[37] Id. at 46.

[38] Obergefell, 576 U.S. at 644.

[39] Id. at 681.

[40] Barnard Center for Research on Women, Marriage Will Never Set Us Free, YouTube (Sept. 29, 2016), https://www.youtube.com/watch?v=rZjb5zynkB4 (featuring Paulina Helm-Hernandez, Trishala Deb, Eric Stanley, and Dean Spade).

[41] Bella DePaulo & Rachel Buddeberg, Should Marriage Be a Ticket to Privilege? Several Dozen Skeptics Weigh In, Psychology Today (Sept. 19, 2010), https://www.psychologytoday.com/us/blog/living-single/201009/should-marriage-be-ticket-privilege-several-dozen-skeptics-weigh-in (summarizing statements and arguments from various scholars and organizations).

[42] Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families & Relationships, MR Online (2006), https://mronline.org/2006/08/08/beyond-same-sex-marriage-a-new-strategic-vision-for-all-our-families-relationships/ (Originally posted by Beyond Marriage).

[43] Nancy D. Polikoff, Beyond (Straight and Gay) Marriage: Valuing all Families Under the Law 210 (2008).

[44] Brake, supra note 1, at 157.

[45] Ann E. Tweedy, Polyamory as a Sexual Orientation, 79 U. Cin. L. Rev. 1461 (2010).

[46] Christian Klesse, Marriage, Law and Polyamory: Rebutting Mononormativity with Sexual Orientation Discourse?, 6 Oñati Socio-Legal Series 1348, 1368 (2016).

[47] Id. at 1369.

[48] Id. at 1368.