Is Sex Necessary? (Legally Speaking)

Posted in: Family Law

The Supreme Court has opted for marriage equality, expanding the number of people whose sexual relationships are protected by law. Two people can marry and gain all the applicable benefits regardless of their sex. The idea behind this, whatever the legal trappings of the decisions, is that there is no sound reason to deprive people of significant symbolic, emotional, and tangible benefits of an institution—marriage—so deeply revered.

Today, couples who live together and have a sexual relationship have the right to get married and have all the benefits of marriage. But have we been thinking too narrowly? Should any pair of adults with a close, personal relationship be able to declare themselves a partnership and enjoy the legal benefits of marriage? Why does a sexual tie entitle a couple to recognition and benefits?

Sex and Marriage: A History

A hundred years ago or so, if you took the statute books literally, the only people entitled to have sex with each other were people who were legally married. All other sex was against the law. Fornication (sex with unmarried people) was illegal; so was adultery (sex with a married person—but not the person you yourself were married to). Cohabitation—living with someone in a sexual relationship—was against the law, except for people who were legally married. Enforcement was, shall we say, something less than perfect. At times, it was almost nonexistent. And the rules were riddled with exceptions. Sodomy, on the other hand, was quite a serious crime; and the full weight of the law sometimes came down heavily on people who had gay or lesbian sex.

Married people were not only entitled to have sex; they were, in a way, required to have sex. Of course, nobody checked on whether John and Mary were having sex every night, or once a week, or once a month, or never. But if either John or Mary did not perform at all, for whatever reason, the frustrated partner had grounds for divorce; or even perhaps an annulment. In New Hampshire in the 19th century, if a spouse joined the Shaker sect, that alone was grounds for divorce. Devotees of this sect were famous for making beautifully crafted furniture; but the sect did not believe in sexual intercourse. Furniture was obviously not an adequate substitute.

Marriage of the old-fashioned kind was felt to be a basic social institution. Marriage brought with it a whole slew of legal benefits. These included, very notably, inheritance rights. You cannot completely disinherit a surviving spouse (at least not easily). Money left to a surviving spouse is, in this country, exempt from the federal estate tax. Many laws give specific benefits or preferences to widows and widowers—the Social Security Act, for example, provides special benefits for a surviving spouse but not for any other type of partner. A citizen can sponsor a spouse for family-based immigration, but a nonmarital partner cannot. In the course of marriage equality litigation, we were forced to reckon with the fact that over 1,000 federal laws rely on marital status for some purpose, and state laws only add to that number.

All this was once quite simple and clear cut. There was, to be sure, common law marriage in most states, and this could complicate matters. A common-law marriage was a completely legal marriage, but one that could be, and usually was, utterly lacking in documentation; in a state that recognized this rather odd institution, a man and woman could “marry,” simply by agreeing to be husband and wife. This agreement could be made orally—and privately. No witnesses, no marriage license, no ceremony—none of these were needed. Proof of a common-law marriage often consisted of nothing more than evidence that Ezekiel and his partner Hepzibah acted as if they were married—lived in the same house, went to the same church, had children together. Most states have long since abolished common-law marriage.

But in our times, in other regards, the old simplicity is gone with the wind. Millions of people live together without bothering to go through any wedding ceremony. Many of them have children. At one time, this was called “living in sin,” and carried with it no rights and duties, for the most part. As is well known, this is no longer the case. Cohabitants have a variety of protections depending on the state in which they live. Marriage, too, is now supplemented by domestic partnership laws. And gay people can now marry, thanks to a changing climate of opinion, and thanks to the United States Supreme Court. The Trump Court may undo this, and overrule the gay marriage case (Obergefell v. Hodges); but this is not likely to happen overnight; and the consequences of such a decision are pretty murky at present.

Protection for Non-Conjugal Relationships? The Burden Sisters

We have moved away from the idea that only marriage entitles one to have sex. But we cling to the idea that only sex entitles one to marry. Why?

Law (and society) treat cohabiting couples differently from, say, casual affairs; and a man or woman’s “partner” is treated differently from a mistress or paramour. Essentially, there are two factors that give legal meaning to a relationship. One is some kind of commitment. But the other, very definitely, is sex.

All this brings us to an interesting case decided by the European Court of Human Rights. The case was brought by two English sisters—a case that tried to call into question one of these two pillars on which the rights of partners rest. They argued that commitment alone, without sex, should be enough to create legal rights. They lost their case in that court; but, nonetheless, they have raised a fundamental question.

The Burden sisters, who brought the case, were unmarried, and quite old. When the case was finally decided, in 2008, one of the sisters was 90, the other was in her mid-eighties. They had “lived together all their lives,” in a “stable, committed and mutually supportive relationship.” They lived in a house built on land they inherited from their parents. Each had made out a will, leaving all property to the surviving sister. The precise question in the case turned on whether the survivor, when one sister died, would have to pay a tax on the inheritance. Property left to a spouse, or to a “civil partner” was exempt from tax. This, the sisters argued, was a rule that discriminated against committed partners like themselves.

The European Court of Human Rights (ECHR) has jurisdiction over cases arising under the European Convention on Human Rights. The United Kingdom has signed on to this treaty. The UK government, however, as one might expect, resisted the claim of the Burden sisters. The case, before the ECHR, raised a number of technical and jurisdictional issues. The Burden sisters probably would have lost their case in any English court, applying ordinary English law—the tax exemption, according to its plain language, obviously did not apply to them. Hence the issue before the ECHR was whether anti-discrimination norms had been violated—whether European human rights law meant that the sisters could not be treated less favorably than married people or civil partners.

The ECHR decided the case twice, and both times, the Burden sisters lost. In the first ruling, the ECHR accepted the argument of the UK that its law “pursues a legitimate aim, namely to promote stable, committed heterosexual and homosexual relationships by providing the survivor with a measure of financial security.” A rehearing of the case, before a “Grand Chamber,” affirmed the earlier decision. This was the end of the line in the ECHR, legally speaking. The sisters were out of luck.

Elderly sisters in Israel, Idit and Gina Fishbein, had a similar experience. At ages 88 and 93, respectively, the sisters sought to be treated as common-law spouses, a status that would enable the surviving sister to receive a “survivor’s pension” from the National Insurance Institute. The sisters had lived with their parents until they both died, but then continued to live together afterwards. They shared not only an apartment, but also a bank account. They plan to remain together forever, purchasing side-by-side burial plots. They filed suit in 2015, but no action has been taken in their case. For them, the question is why cohabitation and mutual care are not as important as, if not more important than, sex to define a partnership.

Conjugal and Non-Conjugal Pairs

The reference to “heterosexual and homosexual relationships” in the Burden case is striking: if we brush aside all the technicalities, the real distinction that doomed the Burden sisters’ case was the distinction between committed sexual relationships; and committed relationships that did not involve sex. Two of the judges, in a dissenting opinion, felt that the sisters had a case. They argued that the “situation of permanently cohabiting siblings” was in many ways, “emotional as well as economical,” not so different from the “situation of other unions, particularly as regards old or very old people.” The mention of “old or very old people” is striking. These judges, consciously or unconsciously, were suggesting that sex should maybe not be quite so essential for committed partners; they were alluding to what is probably a fact, that is, that not every married couple, or civil partnership, is necessarily a sexual union, especially when the two members of the couple are “old or very old.”

Still, most of these pairs, sharing a house and a bed, are in fact love-birds; and it is hard to escape the conclusion that this fact is of paramount importance. Once traditional marriage dies or is mortally wounded, all sorts of consequences follow—illegitimacy, for example, means almost nothing. It carries little or no stigma; and drags along few or no legal consequences. Law and society face the problem of drawing new boundary lines, once the old ones vanish. People can get legal consequences by marrying each other; but it is a solid social fact that millions choose not to. New norms replace old norms. Commitment: that is crucial. But for the most part, so is sex. Civil partnerships, and gay marriage, opened the door to legitimacy, for committed sexual partners, to enjoy the same rights as old-fashioned married people.

But the law still insists on formality. You have to get married, straight or gay; or sign up for some formal substitution for marriage. The two Burden sisters, however, had no legal right to get married. A sister cannot marry a sister. A sister cannot form a civil partnership with a sister. They could have a committed relationship; but without the right to have sex (which sisters do not have), the commitment has no legal consequences. The fact that the Burdens did not and could not marry is significant. Take the case of two close friends, who live together, share ownership of a house, and have joint bank accounts. Suppose they are just close friends. No sex at all. And suppose friend A has a will leaving everything to friend B; and friend B has a will leaving everything to friend A. Now suppose that they find out that the survivor is going to be socked with a heavy tax. They could, after all, decide to avoid this by becoming a civil partnership. Nobody is likely to question their motives in doing this; and yet, to most of us, if they do, it seems somehow fraudulent. But why? Because these are supposed to be sexual relationships, in one form or another.

Indeed, if a man and woman go through a marriage ceremony, with no intention of living together, in order to provide one of the two with a green card, or other immigration rights, the so-called marriage might be legally quite shaky. The United States Supreme Court, in fact, dealt with a rather similar situation in Lutwak v. United States (1953). The defendants were indicted for violating the immigration laws. To get male relatives into the United States (from Europe), they paid American servicewomen sums of money, to induce them to go through a marriage ceremony with these men, and bring them in to the country as war brides, so to speak. The marriages were supposed to be “in form only.” Defendants were convicted of conspiracy to evade immigration laws; the marriages were considered fakes; and the Supreme Court affirmed the conviction.

In this case, there was neither commitment nor (apparently) sex; and therefore, no marriage, at least in the eyes of the majority of the Supreme Court. You can read this case, and the Burden case, to stand for the proposition that both commitment and sex are necessary, to make a valid marriage. Otherwise, you can forget about your tax break. In the Burden case, there was commitment but no sex. Obviously, if there is sex, but no commitment, the tax break will also elude you; if a man leaves money to a mistress, she, unlike the man’s lawful wife, will never be able to claim exemption from tax. In this case, you need the third pillar: formality. If the man in question leaves his wife, moves in with the woman he loves, but never gets divorced—perhaps for religious reasons—he may well be in a committed relationship, and a sexual one; but the lack of formality will scotch any hope that his bequests to his lover will be excused from paying tax.

Marriage and a civil partnership, of course, satisfy the requirement of formality; and raise strong presumptions of both commitment and sex. The Lutwak case stands for the proposition that this presumption might be rebuttable. The Burden case stands for the proposition that both commitment and sex are prerequisites, in any claim of a marriage-like privilege. There are of course all sorts of practical and economic reasons that excuse, or justify, the Burden case. It was, after all, a case about the tax laws. The issue was money. Nobody was trying to break up the Burdens’ home, or chase these two old birds out of their nest. Governments quite naturally want to protect their revenue sources. If two close friends, two sisters, two brothers, an aunt and nephew, or any random couple, living in the same household, could claim a commitment, and get a tax break, the British treasury would stand to lose millions of pounds.

All this is true; and it is no surprise that governments draw this kind of line. Still, the Burden case highlights the fact that, in our times, it is sex that turns a commitment into a relationship with strong legal consequences. Not absolutely, or all the time; but overwhelmingly. Could we have a different rule, a fairer rule? In the UK, during the debate on the civil partnership bill, in the House of Lords, one of the members claimed it was “strongly arguable” that there should be some kind of “relief from inheritance tax for family members who have been carers;” another mentioned “siblings who share a home or a carer who looks after a disabled relative.” And the dissenters in the Burden case in the ECHR talked about “bonds of mutual affection” in couples like the Burden sisters; and the importance of protecting “such unions, like any other union of two persons, from financial disaster resulting from the death of one of the partners.” It doesn’t seem likely that the law will change; but a generation ago, legalization of same-sex marriage also seemed completely out of the question.


Efforts to challenge the system that rewards only sexual relationships have been few and far between. Hawaii, in a pre-marriage-equality compromise, enacted a reciprocal beneficiary law that allows any two people, whether eligible to marry or not, to register as each other’s legal “plus one” and to obtain a limited set of benefits from that relationship. The Law Commission of Canada issued a report about a decade ago called Beyond Conjugality, which suggested review of all existing relationship recognition laws to see whether they could be reworked to expand the possible pairings to include kinship relationships (and maybe others, too). But, for the most part, sex still comes with more benefits than sisterhood.

Posted in: Family Law

Tags: Legal, Marriage

One response to “Is Sex Necessary? (Legally Speaking)”

  1. Joe Paulson says:

    The case for a “civil union” or “domestic partnership” for siblings and the like can be made but “having sex” isn’t the issue here as I see it. People who get married today don’t need to have sex, especially if they voluntarily do so (the Shakers example to me would be harder if both parties agreed). The argument is that as strangers there are valid legal reasons to give special privileges (and burdens for that matter) to certain people to advance their union. Two sisters ALREADY have an existing connection, in fact had one since birth. There are wrinkles there, of course, such as first cousins marrying. But, as a general rule, sexual intercourse isn’t the difference here.