In 1932, Louis Brandeis, one of the most respected Justices in the history of the Supreme Court, urged that states should be seen as social laboratories, trying out innovative laws and policies that provide helpful information for other states not yet ready to act. Over the last decade, eleven states (with almost a quarter of the U.S. population) have put this idea into practice in the context of the legal recognition of same-sex couples. These experiments with ways to legally recognize same-sex couples help explain what we're seeing in California and Massachusetts this summer. The results should encourage social conservatives and liberals alike: granting same-sex couples an equal right to marry reveals that marriage retains its singular value for expressing love and commitment in the United States.
A new study that I co-authored, released by this month by the Williams Institute at UCLA, analyzes the eleven states' administrative data on the various forms of legal recognition offered to same-sex couples. The data reveal that in the first year of marriage, Massachusetts couples eagerly jumped at the marriage option, with 37% rushing to marry. In sharp contrast, states creating civil unions as a compromise alternative only saw 12% of couples signing up in year one, and the even weaker domestic partnerships attracted only 10% of same-sex couples in their first year. Given this evidence of the preference for marriage, it's no surprise that the first week that marriages were opened to same-sex couples in California saw a remarkable surge of 5,000 gay and lesbian couples lining up for marriage licenses.
Other evidence also points to a strong vote of confidence in the enduring relevance of marriage. After Massachusetts opened up marriage to same-sex couples, creating a renewed hope for gay couples nationwide, the number of out-of-state couples traveling to Vermont to get a civil union plunged, even without the ability to travel to Massachusetts to marry.
Now that the archaic law that blocked out-of-state same-sex couples from access to marriage in Massachusetts has been repealed, same-sex couples in the 48 states that don't allow them to marry have an option on both coasts. California and Massachusetts will share a $800 million same-sex wedding windfall, as tens of thousands of couples will travel to those states to experience the social (if not always legal) recognition associated with marriage--and look for a drop in the numbers of civil unions and domestic partnerships in other states that could rival the fall in housing prices.
While we see a clear preference for marriage, many same-sex couples take advantage of lesser forms of legal recognition that are offered, like civil unions and domestic partnership. Overall, the Williams Institute study found that over 85,000 couples, making up 40% of all same-sex couples in these states, have taken the legal plunge. Vermont leads the pack, with 51% of the state's same-sex couples entering civil unions over eight years. Massachusetts is closing in quickly with 44% of same-sex couples married in only three years, and California saw 44% of its same-sex couples register as domestic partners over eight years.
These same-sex relationships also turn out to be stable. Civil unions and domestic partnerships are as likely to stick as the marriages of different-sex couples, with dissolution rates roughly equal to heterosexual divorce rates.
While the proportion of same-sex couples in legal unions doesn't yet match marriage levels of different-sex couples (nine out of ten of whom are married), the proportions are increasing. Like their different-sex counterparts, many same-sex couples need time to consider the important legal and social responsibilities that accompany legal recognition. For years, same-sex couples have cobbled together legal documents and created personally meaningful substitutes to convince families and friends of the importance of their relationships. Not all will want to restart the clock on their relationships, and not surprisingly, each member of a couple might not agree about what to do.
But it sure looks like many people in same-sex couples are the marrying kind. At current rates, same-sex couples will catch up to the marriage rates of different-sex couples within the next two decades. This summer of love and commitment on both coasts shows other states that the experiment with legal recognition of same-sex couples has been a success but that the best option for same-sex couples is the same one that different-sex couples have: marriage. Same-sex couples eagerly embrace what some feared was an endangered institution, and their celebrations will be an economic bright spot in an otherwise gloomy environment. Creating an alternative to marriage is no substitute for the real thing.
M. V. Lee Badgett is the research director of the Williams Institute for Sexual Orientation Law and Public Policy at UCLA School of Law. She also directs the Center for Public Policy and Administration at the University of Massachusetts Amherst.