The Right to Form a Family: Using Human Rights Principles to Move Beyond Civil Marriage

Meet the Burden sisters. Over the past two decades, Joyce and Sybil Burden, now in their mid-90s and late-80s respectively, have been fighting a series of legal battles in order, in their words, to be “treated as lesbians.” The sisters have lived together their entire lives in a home in Marlborough, England, which they inherited jointly from their parents. When one of them passes away, the surviving sister will be forced to sell the house in order to pay their inheritance tax that will come due. In a 4-3 ruling in 2008, the European Court of Human Rights declared that the sisters did not possess the same rights as couples civil partnerships or marriages, but they’ve continued to advocate for the expansion of Britain’s Civil Partnership Act. While some legislators have called such a proposal “bizarre” and “inappropriate,” why aren’t the Burden sisters, who rely upon each other for care and companionship, deserving of the same protections extended to couples in civil marriage and partnerships?

In the United States, civil marriage functions as a gateway to more than a thousand federal and state based laws and privileges that regulate and often ameliorate the lives of married couples and their dependents. A number of scholars and activists have looked at the ways in which those living in families labeled alternative or non-traditional, such as long-term, cohabiting roommates (sometimes called “Golden Girl households”), those living with extended kinship networks (beyond the designation of spouse, or parent/child), people in polyamorous partnerships, and single folks often lose out on benefits and face discrimination outside of the protections offered by civil marriage. For almost a decade, the largest household type in America is a single person living alone and yet law, public policy, and custom continues, as it has for centuries, to punish and cast singles as illegitimate.

In 2006, a group of international human rights activists and scholars gathered in Yogyakarta, Indonesia to draft a document outlined a set of principles to guide the development of both domestic and international legal protections relating to sexual orientation and gender identity. Rather than focus on the extension of marriage rights, the group settled on emphasizing the right and ability of people to form a family.

In this paper, I argue that the right to form a family, in a range of forms including, importantly being a family-of-one, offers a more just way of conceptualizing civil rights and protections rather than marriage. A reconceptualization of domestic law, civil rights, and basic human needs in the United States could help move us beyond a system that exclusively privileges romantic couples to recognize and support the myriad ways in which families and social relations form.


Part of panel Forms of Exclusion in Marriage Law
October 2, 2016, 11:00–12:45