Blackstonian Marriage, Gender, and Cohabitation

In Blumenthal v. Brewer, the Illinois Supreme Court held that it would not enforce an alleged agreement between a nonmarital couple that centered on their relationship. The National Center for Lesbian Rights argued that the court’s holding punished people who entered into a nonmarital relationship. Nancy Polikoff found the opinion “shocking.” Albertina Antognini suggests that nonmarriage cases refusing to enforce such agreements harm women. These accusations also reflect concern that Blumenthal-type results are designed to encourage marriage and penalize others.

Our analysis of Blumenthal and the nonmarriage cases starts from a different place. We think that the Blumenthal approach may not be entirely evil, even though we think Blumenthal itself raises issues about the retroactive application of these principles to people who could not marry at the time they began their relationship.

Prospectively, our approach to nonmarital relationships rests on the principle that such relationships should be seen as one of a continuum of possible types of intimate relationships, and their legal regulation should reflect the parties’ intentions in entering into them, intentions that are shaped by differing community norms. Central to such an approach are assumptions about the concept of equality between partners and between marital and nonmarital couples. At one time, marriage was conceived of as an intrinsically hierarchical institution necessary to protect women from the stigma and impoverishment associated with nonmarital sexuality. In that context, nonmarital relationships were associated with shame in some cases and, in others, the desire to craft more egalitarian unions.

Today, at a time when more than nine million people have entered into nonmarital unions and when women enjoy access to the means of self-support (albeit not full equality), the nature of nonmarital unions has changed. The stigma is gone and the reasons for entering into them have become much more varied, defying any cookie cutter approach to their legal regulation. We therefore argue that it is a mistake to assume that nonmarital relationships should necessarily generate the same legal consequences as marital ones or that a failure to generate the same legal consequences is somehow a penalty designed to discourage nonmarital relationships. Instead, legal regulations should follow from the nature of the relationships as they stand on their own terms, without a presumption that they rest either on interdependence between two partners making equal contributions or dependence arising from the assumption of gendered roles.