Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights

This article takes a critical, historical view of the LGBT rights movement in three related areas: marriage equality; injury to same-sex relationships in tort law; and the creation and enforcement of private contractual agreements between same-sex partners. The period surveyed covers the early 1970's through late 2008. Through examination of case law, legislation and legislative history, and the increasing visibility of the LGBT community during the period in question, Marriage, Tort, and Private Ordering: Rhetoric and Reality in LGBT Rights argues that, during the 1970's, the socially enforced invisibility of gay lives and relationships translated into an inability to regard "gay marriage" as anything but an oxymoron. Moreover, inasmuch as marriage was also seen as required for relationship validity, tort claims also met with failure when the intimate lives of gay and lesbian couples came into view.

Over time, though, both visibility and the vocabulary needed to describe it have moved same-sex couples ever closer to formal, legal equality. Private arrangements by same-sex couples, by contrast, have long enjoyed greater recognition, in part because courts have been able to focus on economic understandings and the law of contract.