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Nancy Polikoff: Same-Sex Marriage and the 2010 Census

Nancy D. Polikoff, author of Beyond (Straight and Gay) Marriage: Valuing All Families under the Law. Polikoff is a Professor of Law at American University Washington College of Law, where she teaches Sexuality and the Law and has taught Family Law for more than 20 years. For more, read her Beyond (Straight and Gay) Marriage blog.

Census image by Quinnanya on FlickrIf thinking of yourself as married to your partner turned you into husband and husband or wife and wife, then we wouldn't need a marriage equality movement, right? So imagine my puzzlement to find gay organizations instructing us to fill out the 2010 census based on how we think of our relationships. The Williams Institute, to whom I turn for all things demographic about gay men and lesbians, offers this advice, which other groups are repeating:

Same-sex couples who have been legally married or consider themselves to be spouses should identify one person as a "husband or wife".

Other same-sex couples may be more comfortable using the term "unmarried partner". In general, this designation is designed to capture couples who are in a "close personal relationship" and are not legally married or do not think of themselves as spouses. (emphasis mine).

Now I understand the census is an imperfect instrument (very) for counting our relationships. If a couple does not live together, they will not be counted, because the census counts households and the relationships of the people in each household. There is also no option for those who are registered as domestic partners or in civil unions. I applauded when the Williams Institute and others won from the Obama administration the right to be counted as same-sex spouses when they were same-sex spouses.

But now it appears that labeling the person you live with your husband or wife is actually not going to measure the number of same-sex married couples but rather the number of couples who consider themselves spouses, whatever that means -- and I truly do not know what it means.

Book cover for Beyond (Straight and Gay) Marriage Gary Gates, demographer par excellence at Williams, explained to me that the census does not ask marital status. In other words, it does not ask you to say whether you are single, married, divorced, etc. He's right. But it does seem to me that asking us to choose "husband/wife" or "unmarried partner" actually is asking us to say if we are married. Admittedly, whether we are married can be contingent. Those couples who have married in a state or country that allows same-sex couples to marry are married in some places. I think they should mark the "husband/wife" box. Those who have not married are "unmarried partners." To me that is not a lesser status; it's just a different one.

The Williams Institute materials are clear that you can identify only one adult in your home as a "husband/wife." What about those who consider themselves married to more than one person? If the line isn't legal recognition, what is the limiting principle?

How about those who have entered a civil union or the kind of domestic partnership that confers virtually all the state-based consequences of marriage? This is a challenge. My partner and I have been registered domestic partners for many years. When I look at the census form I gravitate to "unmarried partner" because we are not married (and we don't plan to marry even though DC now allows it). Yet I admit that some couples who enter this status because it's available where they live may well consider each other husband/wife, and since there is no way to accurately capture their legal relationship then I'm okay with selecting whichever designation fits their own understanding.

But here's another puzzle in the advice from Williams. What does it mean to say that we "do not think of ourselves as spouses"? Either "spouse" has a meaning and you either are or are not, or, well, it has no meaning at all. If my partner and I were to marry I am not sure I would think of her as "my spouse" if that means some traditional notion of marriage. I know I would never call her my "wife." But if we marry, am I not supposed to check the "wife" box for her regardless of how we think of ourselves?

I've tried to think of this from a straight person's point of view. What do an engaged couple living together mark? "Fiancé" is not an option, and they may never have thought of each other as "unmarried partners," but they know they are not yet husband/wife. What do they check? Or...how about the couple who think they are "common law" married but they aren't, because their state does not recognize common law marriage (only 10 and the District of Columbia do)? They will check "husband/wife" and it won't be accurate.

Gary Gates tells me that the Census Bureau wants all people who are not sure what to check to select the answer that best reflects their household as they understand it. I could not find that advice anywhere on the Census2010 website. But I did call the census "help line" and said I was in a same-sex registered domestic partnership and did not know which box to check. The person I spoke with said it was my "preference," and if I saw her as a "married partner" I should check "husband/wife" and if I saw her as a "unmarried partner" I should check that.

Gates also says, and I suspect he is right on this, that no amount of education by gay organizations would yield an accurate count of legally married same-sex couples given the constraints of the form itself. So what will gay groups say the census has shown once it's tabulated? Will they qualify the number of claimed "married couples" with the caveat that it is couples who think of themselves as married? I'm guessing there will be comparison of the geographical location, income, etc of those who identify as same-sex unmarried partners and those who identify as same-sex husbands/wives, rather than simply an adding together of the two categories to tell us about same-sex couples in general. But the categories are unstable and I have trouble imagining what legitimate conclusions could be drawn from the raw data.

And here's another tantalizing nugget from Gates. Apparently the American Community Survey forms (they replaced what were once census "long" forms) ask both marital status and the relationship of the people in the household, and more same-sex couples check "husband/wife" than report being married. He's trying to sort out what that means. Fascinating, isn't it? He's going to have lots more sorting to do over the next several years.

This post originally appeared at Nancy Polikoff's Beyond (Straight and Gay) Marriage blog.

Census image by http://www.flickr.com/photos/quinnanya/ / CC BY-SA 2.0