I Now Pronounce You…Friend and Friend

Some argue it's time to legally recognize the bond of friendship

A version of this article was originally published June 8, 2008 in The Boston Globe

IN THE AMERICAN hierarchy of relationships, friendship often seems distinctly second-class. We obsess about the “work-family balance,” but the leisurely conversation with an old friend is a quick casualty when it conflicts with either one. Just in the last generation, the number of real confidants we have outside the family has dropped substantially, according to one 2006 study.

Now, a number of scholars are seeking to shore up friendship in a surprising way: by granting it legal recognition. Some of the rights and privileges restricted to family, they argue, should be given to friends. These could be invoked on a case-by-case basis — eligibility to take time off to care for a sick friend under an equivalent of the Family and Medical Leave Act, for example. Or they could take the form of an official legal arrangement between two friends, designating a bundle of mutual rights and privileges — literally “friends with benefits,” as Laura Rosenbury, a law professor at Washington University, puts it. One scholar even suggests giving friends standing in the tax code, allowing taxpayers to write off certain “friend expenditures.”

Such changes, proponents say, could contribute to a shift in how our society values personal relationships. In part, they say, the point is to acknowledge that society has already changed: as more people are living outside of marriage, friendships have become the primary relationships on which many Americans rely. But a broader aim is to recognize the universal social and psychological benefits of friendship, which rival those of other relationships, notably marriage, that receive active state support. New laws could elevate friendship’s status, recasting it as an essential part of our lives, rather than a luxury often sacrificed to other priorities.

Changes of this kind would “allow you to say, these are people who matter deeply to me,” said Rachel Moran, a law professor at the University of California at Berkeley who is one of the thinkers in favor of friendship law. “I want that to count, not only in my own intimate life, but in the eyes of the law.”

Most of the scholars in this nascent movement are part of a larger push to challenge the privileged status of marriage. They believe society would be better off supporting a broad spectrum of relationships, rather than exalting one kind above the rest.

And this, in turn, has led to some of the movement’s strongest opposition. Critics charge that marriage deserves its special status, and that friendship, a fundamentally different kind of relationship, does not warrant the same kind of recognition and support. Other skeptics hold that friendship should stay outside the law for its own sake — do we really want friends with red tape?

“There is an ethos that if something is important, the law should be on the scene,” says Katherine Franke, a law professor at Columbia. “I think we should resist that urge.”

. . .

Like chocolate and wine, friendship is one of the great pleasures in life that turn out to be good for you, too. (And unlike those goodies, there’s no caveat about moderation.) Research indicates that friendship boosts both physical and mental health, especially among the elderly, a growing demographic. One Australian study from 2006 suggested that close friendships did more to increase longevity than did family relationships.

Abundant research confirms that friendship, with its shared confidences and laughter, enhances health by reducing stress. Social connections are associated with stronger immune systems and less vulnerability to infectious disease. One factor in women’s greater life expectancy may be their comparatively robust social support networks and intimate female friendships.

The boons of friendship extend to society at large. A 2004 study based on Gallup poll data found that employees who have a “best friend” at work are seven times more likely to be engaged in their jobs. Ethan Leib, a law professor at the University of California at Hastings, points out that friends save the state money by providing care and services during illness and emergencies.

Yet the state has never pursued a role in supporting friendship, the way it has, understandably, in the case of marriage. Spouses get income tax breaks and an array of other rights and privileges. They are eligible to take leave from work to provide care under the Family and Medical Leave Act; to make medical decisions on each other’s behalf in the event of incapacitation; and to bring suits for wrongful death on each other’s behalf, among other rights. They are also granted immunity from testifying against each other in court.

Over the past few decades, the laws governing marriage and family have shifted. In the 1960s and 1970s, a series of landmark reforms made marriage a radically different institution: women were granted equal rights within marriage, “illegitimate” children were granted legal rights, and no-fault divorce made dissolving a marriage much easier. More recently, a number of states have created civil unions and domestic partnerships.

In the view of some analysts, though, the reforms haven’t gone far enough — the law now needs to catch up to the society it helped to shape, in which many more people live outside marriage. The reforms made marriage fairer and less compulsory, and they have even begun to recognize committed romantic relationships between members of the same sex. But for the most part, the law hasn’t acknowledged the other types of important relationships that people can form.

“If the law decides to support some relationships, why not others that similarly involve care and support?” asks Washington University’s Rosenbury. “What is it about marriage or marriage-like relationships – that is, relationships that are assumed to have sex in them?”

In certain circumstances, the lack of legal rights for friends can create painful situations. If a person is incapacitated and has no functional familial relationships, friends are not typically permitted to make medical decisions, unless designated in advance. Hospitals often restrict visitors to kin, or allow family members to vet visitors, which can cause anguish when friends and families come into conflict.

“A patient should be visited by the people she would want to visit her,” says Nancy Polikoff, a law professor at American University. “In an ambulance, an unmarried person who has a close friend with him and has to go alone – it’s just wrong. It denigrates the importance of friendship in people’s lives.”

In fact, a smattering of laws have already begun to address these concerns. A Florida law allows a friend to serve as a healthcare proxy when no family member is available, and a law passed last year in Virginia requires hospitals to allow patients to choose their own visitors.

But another proposal would take this idea even further, by allowing friends to tie a variation of the knot. David Chambers, a law professor at the University of Michigan, has suggested permitting people to register as “designated friends” with mutual benefits and obligations. The friends would have the right (and duty) to make financial and medical decisions on each other’s behalf in case of incapacitation; they’d have the same medical leave and testimonial privileges as spouses; and if one died without a will, the other would be entitled to a share of the estate.

While nothing quite like this exists yet, it may not be as far-fetched as it sounds. A 1997 Hawaii law allows pairs of adults to register their relationships – with no assumptions about the nature of those relationships – and receive some of the benefits awarded to spouses. Laws like these could provide an important option to people for whom romantic relationships are not central. Real-life versions of Thelma and Louise and Bert and Ernie could make their friendships official, gaining legitimacy and security on their own terms.

. . .

If the law were to move systematically toward recognizing friendship, it could trigger deeper changes in the way we structure our lives. The most radical effect might be to disaggregate the components of relationships. Most people grow up expecting to eventually find a long-term relationship — whether marriage or not — that combines sex, domesticity, friendship, some degree of economic interdependence, and caregiving. But some wonder whether it is healthy, or even realistic, to expect one relationship to meet all of those needs.

Already, of course, large numbers of people do separate those elements. In a development that would have shocked our forebears, countless singles live with roommates, engage in serial sexual liaisons, and depend on friends for support. Again, pop culture supplies examples: think “Friends” and “Sex and the City.” But this lifestyle is considered transitional — the period before the wedding.

If the state were to sanction a wider variety of relationships, unconventional arrangements could gain currency as long-term, legitimate options. This could foster increased flexibility in forming relationships and the expectations people bring to them.

Yet, as others are quick to point out, the reigning model has its advantages, simplicity among them. Some of the proposed changes could pose bureaucratic headaches. Robert Vischer, a law professor at the University of St. Thomas, is skeptical of expanding the Family and Medical Leave Act to include friends, which would place a burden on employers. At a minimum, he says, the employee should have to prove that there is no other caregiver for the friend. Tax deductions for “friend expenditures” (proposed by Ethan Leib at UC Hastings) could have related drawbacks. “It’s hard enough for me when I do my taxes to figure out what a work-related expense is,” says Rebecca Adams, a sociology professor at the University of North Carolina at Greensboro and editor of the journal Personal Relationships. “That doesn’t seem terribly practical to me, although I would love to be able to deduct these.”

Practical problems aside, there are strong philosophical objections. Vischer says the state is right to give special privileges to marriage, which, he argues, is “not just this benefit-dispersal system. The state’s interest in marriage supports the notion that permanent, public, and exclusive commitments are good for society.” He sees the prospect of, in his words, “mix-and-match” relationships as a danger rather than a promise.

Apart from the question of friendship’s place in our lives, another issue is how we treat our friends. Leib at UC Hastings argues that friendship should be seen as involving legal duties as well as privileges. For example, under the law, there is no general duty to “rescue” a stranger in peril, but certain relationships impose that obligation: spouses are legally required to rescue each other, and property owners are responsible for rescuing invitees. Leib suggests that friendship should be included among the relationships that trigger this duty. He also suggests that since friendship entails heightened trust, people should be held accountable for abusing it – for example, by taking advantage of confidential discussions for profit.

Having come across many lawsuits that involve friendship breakdown, he believes that codifying friendship would equip the courts to deal more effectively with such cases. “It seems like there’s an emotional reaction by the betrayed party,” he says. “Courts really don’t have the tools to deal with those kinds of disputes.”

At the very least, Leib maintains, the law needs to arrive at a consistent treatment of friendship. In his view, this should include certain obligations, although, as he concedes in a paper, legal duties could lead to some awkward disavowals: “I like you alright…but I do not want to be your friend for legal purposes.”

Some of his colleagues are appalled by the idea of defining and governing friendship. “There is a danger that the state could go from recognizing to regulating friendship,” says Rosenbury. Her ideal is support without constraints, a tricky balance in any context. Indeed, it sounds a lot like what people find elusive in most relationships — and uniquely valuable in friendship.

Source: The Boston Globe

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