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Queers have been getting married to one another long before the Obergefell Supreme Court decision in 2015 paved the way for nationwide marriage equality, and I don’t mean that in a metaphorical “they were married in their hearts” sense. Lesbians, gay men, and trans people in the United States have been Bugs Bunny–ing their way into legal marriage for centuries by bamboozling local clerks, exploiting loopholes, and getting creative with concepts like “adoption” and “roommates.”
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Marriage equality hasn’t necessarily been the sole desire of queer people on an individual level, nor was it always the chief legislative aim of the queer liberation movement as a whole. While pre-Obergefell history is chock full of trans people and same-sex couples attempting to cobble together some of the legal protections marriage afforded their heterosexual counterparts, it’s also replete with queers building relationships, families and communities outside the confines of traditional marriage and without much interest in emulating it. That tension—attaining equal protection under the law without, as my friend, the writer and academic Grace Lavery, wrote in her own wedding vows, “dwindling into mere heterosexuality“—would shape countless queer relationships in the generations before Obergefell was so ordered.
The straights were sick of our shit as early as 1829, when the scourge of “female husbands” was commonplace enough to exasperate headline writers and judges alike. (Here, as in a lot of pre-Stonewall queer history, it’s hard to know if these “female husbands” were queer women cross-dressing as men to trick the local authorities into granting a marriage license, or if some of these husbands identified as men and were later outed.) Lucy Hicks Anderson, a chef, madame, socialite, and trans woman, was convicted of perjury and incarcerated in 1945 for stating she was a woman on the marriage license granted to her and her husband, Reuben Anderson, the year prior. Yolanda Daniel and Jo Ann Martinez were briefly legally married in California in 1976 when a Merced County clerk realized there was, technically, no prohibition explicitly banning same-sex marriage in the state. Like the Andersons’ marriage, Daniel and Martinez’s union was invalidated shortly after news of their nuptials hit the papers—but, while both couples were certainly pioneers of their eras, they weren’t doing anything new.
Because the state wouldn’t acknowledge their connection as spouses, many same-sex couples pursued a different kind of familial recognition: adoption. Famously, civil rights icon Bayard Rustin legally adopted his partner Walter Naegle in 1982. (The story goes that the two men met on the street in Times Square in 1977, when Times Square was the place for a different kind of meet-cute.) Naegle was already in his 30s when the couple decided to try to eke out some kind of legal recognition of their partnership. They didn’t exactly try to disguise what domestic arrangement the adoption would stand in for; in 2015, Naegle told the New York Times Magazine that the social worker assigned to their case was more or less in on their adoption-as-marriage ploy: “She was apprised of the situation and knew exactly what was happening… Her concern, of course, was that he wasn’t some dotty old man that I was trying to take advantage of, and that I wasn’t some naïve young kid that was being preyed upon by an older man.” (Naegle was in his early thirties at the time, and almost four decades younger than Rustin.) The adoption was successful, and Naegle took over Rustin’s estate after the latter passed away in 1987.
Partner adoption was surprisingly common prior to marriage equality: It was the tidiest way for same-sex couples to secure legal recognition as family. While many of these adoptions strained credulity even more than Rustin and Naegle’s had—Rustin was old enough to have been Naegle’s father if he’d suddenly needed a new one at age 32—same-sex partners were adopting each other right up until marriage equality was made legal nationwide. (Adoption as it relates to LGBTQ partnership carries distinct contemporary challenges: Though partner adoption has been phased out by marriage, same-sex couples continue to face obstacles when it comes to adopting children for reasons of actual parenting. Even if a queer couple’s marriage is legally legitimate in all 50 states, who gets recognized as their kids’ parent might change the instant they cross state lines.)
Partner adoption wasn’t easy or foolproof, but it was a relatively neat solution compared to the messier alternatives. It was common for queer couples to try and cobble together legal ties to one another, usually in their wills. Here, though, it gets complicated—there wasn’t some set playbook for how to establish a marriage-adjacent legal foundation between two people, so how this was done varied from state to state and from couple to couple.
Luca Maurer, the director of Ithaca College’s Center for LGBT Education, Outreach and Services described these documents as “attempts by couples and lawyers to write wills that purposefully tried to establish some rights between partners without ever using the words partner, spouse, or anything similar. [The wills were] designed specifically to try to dodge laws that forbid same sex couples from establishing legal ties. Basically, they spell out, Look—these people are Great and Good Friends!” Maurer explained that the wills differed depending on the state or jurisdiction they were drafted in, but all of them tried to assert basic rights between the couples without implying that they were romantically linked.
The urgency for queers to have wills in place took on a new urgency when the AIDs crisis erupted in the 1980s. Organizations like The AIDS Legal Referral Panel sprang up to help gay men designate their healthcare proxies, grant partners or loved ones power of attorney, and leave any assets they had to whomever they wished. For queer men diagnosed with the disease—especially those estranged from their families—being able to designate their romantic partners and chosen families as the custodians of their estate was critical to providing at least some peace of mind.
While these Diet Marriage™ arrangements were often (and by necessity) kept secret, we can see their impact in almost any LGBTQ history collection in the country. Ask about the provenance of an artifact in the GLBT Historical Society Archives or Cornell’s Human Sexuality Collection, and you’re likely to learn that that wig or photo album or jar of pubes was donated by the original owner’s partner, or maybe by their queer chosen family—which means, somehow, the original owner managed to pass their possessions on to their loved ones, rather than to their default family-of-origin next of kin.
The other significant method queers used to legally bind themselves was to live or share property together. In other words, they were roommates. The most famous example of possibly lesbian co-homeownership was the trend of Boston Marriages, an umbrella term which describes basically any two cohabitating, unmarried women around the turn of the 20th century. I say “possibly lesbian” because there apparently exists some debate as to whether these relationships were mostly intimate-but-platonic heterosexual women opting to live financially independently of men, or whether “financial independence” was a handy cover for being super gay together.
What isn’t up for debate were the goings-on at Brooklyn’s February House, which was both effectively a queer commune and home for some of the nation’s most renowned creatives, including Carson McCullers and W. H. Auden, during World War II. February House more of a refuge than an “intentional community” in the style that queer communes would be structured just a few decades hence. Communal living flourished in the U.S. in the 1960s. Queers were no small part of the movement dedicated to building self-sustaining, supportive communities outside the traditional nuclear family structure. Places like February House had sprung up out of necessity to create a landing space for queer artists; these later communes were opportunities for queer people to purposefully create a society in miniature—and to put some distance between themselves and the heterosexual world. (That world being one where prohibitions against sodomy, cross-dressing, and other anti-LGBTQ policies were both in place and enforced.)
The most famous of these communities is the Radical Faeries, which was founded in 1979 and persists to this day. Described by the Making Gay History podcast as an “anti-assimilationist group, which drew inspiration from Marxism, paganism, anarchism, and Native American spirituality,” the Faeries were co-founded by Harry Hay. Hay first co-founded the gay rights organization the Mattachine Society in 1950—one of the first groups formed in the U.S. to pursue equal rights for homosexuals—but was kicked out only a few years later for being a communist. The Mattachines would continue to agitate for gay rights with a decidedly assimilationist (and notably cisgender) bent; meanwhile, Hay would go on to found a sanctuary for feral queers. One of Hay’s co-founders, Donald Kilhefner, explained the Faeries were “called into being to examine fundamental questions of gay consciousness and gay spirituality, encouraging us to declare our own identity for ourselves rather than having it imposed upon us.”
I don’t want to reduce Hay’s complex and storied life to a trite metaphor about the tension between queer assimilationism and separatism, or reduce that larger debate to a discussion around whether or not legalizing marriage equality helped or hindered the broader project of queer liberation. Marriage was an insufficient, narrow means of granting legal recognition to families before Obergefell, and it remains so now. Also: So what? The state banned queer people from accessing legal marriage until just five years ago, and queers still found ways around it—to marry, to create chosen families and to build community with one another despite governmental and societal opposition.
Queers don’t need to heed the state’s strictures on how we live as partners or as communities any more now than before the federal government conceded same-sex marriage; in fact, it’s incumbent on us to access, ignore or exploit marriage equality however we want. Marry for health care! Marry for citizenship! Marry for tax breaks! We should continue the work and demand the rights that come with legal coupledom be untethered from marriage and available to any group of people who want to be legally recognized as family. In the meantime, we’ll keep doing what our queer forebears did, and find new ways to love, fuck, and support one another as we go.
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