Wedded to an Illusion Do gays and lesbians really want the right to marry?
By Fenton Johnson. Harper's Magazine | November 25, 2004. http://www.harpers.org/1996-11-WeddedToAnIllusion.html Last summer, when American politicians underwent yet another of their periodic convulsions over the status of gays and lesbians, I found myself pondering the evolving history of marriage. In response to the possible recognition of same-gender marriages by the state of Hawaii, Congress overwhelmingly passed the Defense of Marriage Act, which reserves federal benefits and rights for male-female couples and permits states not to recognize same-gender marriages performed in other states. Sponsored in the House of Representatives by Bob Barr (three marriages) and endorsed by then Senator Bob Dole (two marriages), the bill was called "gay baiting" by the White House and "unnecessary" by President Clinton (he of the colorful personal life), who signed it nonetheless in late September. The law might appear to be only so much election-year positioning and counter- positioning, but long after this year's political season is forgotten, we will be agonizing over the questions implicit in the legislation. As a married, straight friend cracked to me, "If marriage needs Congress to defend it, then we know we're in trouble." Marriage. What does it mean these days? Peau de soie, illusion veil, old, new, borrowed, blue? Can it mean the same thing to a heterosexual couple, raised to consider it the pinnacle of emotional fulfillment, as to a samegender couple, the most conventional of whom must find the label "married" awkward? Can it mean the same thing to a young lesbian�out since her teens, occasionally bisexual, wanting a child, planning a career�as to me, a forty-plus shell-shocked AIDS widower? And in an era of no-fault divorce, can it mean to any of us what it meant to our parents? * * * The unacceptability of gay marriages may have bloomed with sudden propitiousness on the agendas of Clinton and Dole, but the issue has been steadily moving into the legal conversation across the last twenty-five years. In 1991 three Hawaiian couples�two lesbian, one gay-male�sued the state over the denial of their applications for marriage licenses; on principle, a heterosexual ACLU attorney took the case. Two years later, to everyone's amazement, the Hawaii Supreme Court ruled, in Baehr v. Lewin, that the state's denial of licenses violated the Hawaii constitution's equal-rights protections. The court took care to note that the sexual orientation of the plaintiffs was irrelevant. At issue instead was discrimination based on gender: the state discriminates by offering benefits (including income tax, worker's compensation, retirement, welfare, and spousal support) to married men and women that it denies to exclusively male or female couples. This is no minor point. What the court ruled on in Hawaii was not gay marriage but simply marriage: whether the union of two people of the same gender qualifies for the benefits the state offers to mixed- gender couples, no matter if the spouses marry for love or children or Social Security benefits, no matter if they are gay or straight or celibate�in other words, all those reasons, good and bad, for which men and women now marry. The Hawaii justices remanded the case to a lower court, challenging the attorney general to justify gender discrimination in marriage benefits. The plaintiffs' attorneys currently expect the State Supreme Court to allow the issuance of marriage licenses to same- gender couples by late 1997, though more litigation seems as likely, given the determination and financing of the opposition. If the state court acts as the plaintiffs anticipate, the matter will surely reach the federal level. Contrary to widespread reporting and rhetoric, Article IV of the U.S. Constitution does not necessarily require states to recognize marriages performed in other states; interstate recognition of marriage remains largely unexplored legal terrain. If a couple marries in Hawaii, then moves to New York or Georgia, can those states refuse to recognize the marriage) Under the Defense of Marriage Act, the answer is yes, though some legal experts argue that states already have this right, while other experts contend that the act is unconstitutional. Either way the issue invokes a resonant precedent: as recently as 1967, sixteen states refused to recognize mixed-race marriages legally performed elsewhere. Those antimiscegenation laws were struck down that same year by the U.S. Supreme Court in Loving v. Virginia, a landmark case that the Hawaii court cited at length in Baehr v. Lewin. At stake first and foremost are the rights of gays and lesbians to assume the state-conferred benefits of marriage. The assumption of these rights is controversial enough, but Baehr has still larger implications for an institution that has historically served as the foundation of a male-dominated society. It's instructive to recall that in the late 1970s Phyllis Schlafly and her anti-Equal Rights Amendment (ERA) allies predicted that the codification of the equality of women and men, as embodied in a federal ERA, would lead to gay marriage, presumably because they felt that to codify the equality of women and men would undermine the values upon which traditional marriage rests. The federal amendment failed, but Hawaii (along with several other states) adopted its own ERA; and here we are, just as Schlafly predicted�right in the place, I argue, where we ought to be. For this is the profound and scary and exhilarating fact: to assume the equality of women and men is to demand rethinking the institution that more than any other defines how men and women relate. * * * Marriage has always been an evolving institution, bent and shaped by the historical moment and the needs and demands of its participants. The Romans recognized the phenomenon we call "falling in love," but they considered it a hindrance to the establishment of stable households. Marriages certified by the state had their foundations not in religion or romance but in pragmatics�e.g., the joining of socially prominent households. Divorce was acceptable, and women were generally powerless to influence its outcome; the early Catholic Church restricted divorce partly as a means of protecting women and children from easy abandonment. At the beginning of the thirteenth century, facing schisms and heresies, and seeking to consolidate its power, the Catholic Church institutionalized marriage, confirming it as a sacrament and requiring that a priest officiate�a crucial step in the intrusion of organized religion into what had previously been a private transaction. Several centuries later, the conception of "family" began to be transformed from an extended feudal unit that often included cousins, servants, and even neighbors to a tightly knit nuclear unit composed of parents and children and headed by a man. With marriage as its cornerstone, this idealized unit forms the foundation for virtually all American legislation concerning the family. Throughout these developments, one aspect of marriage remained consistent: even as women were idealized, they were widely regarded as chattel�part of the husband's personal property; marriage was state certification of that ownership. With the women's suffrage movement came a growing acceptance of the equality of women and men, along with the principle that the individual's happiness is of equal or greater importance than the honoring of social norms, including the marriage contract. Divorce became both common and accepted, to the point that even the woman who marries into wealth gains little economic security (absent a good lawyer or a prenuptial agreement). Women have arguably gotten the worst of both worlds: Men may more easily leave their wives, but women are nowhere near achieving earning parity, so that now they must cope with economic insecurity as well as the fear of being dumped. For every woman who revels in freedom and the income from a fulfilling career, many more face supporting themselves and often their children on welfare or at a low salary with few benefits and no job security, dependent on child support or alimony often in arrears. No wonder that almost a third of babies are now born out of wedlock, a figure that has risen consistently since the 1950s. Some of these mothers (more than a few of them lesbians) are building matriarchal families, but many are giving birth to unplanned and probably unwanted children. Whether by design or by happenstance, these unmarried women are the primary force in changing the profile of the family; any discussion about contemporary marriage that excludes them is pointless. * * * Both our culture and its couples are searching for some new thinking, informed by the understanding that what is at stake is our perception of the marriage contract and women's role in defining it. Understandably, advocates of same-gender marriage have shied away from territory so daunting, focusing on the narrower civil-rights a issues�the need to extend, as required by our American commitment to equal treatment before the law, the invitation to another class of people to participate in the same troubled ritual, with one tangible result being a bonanza for attorneys specializing in gay divorce. That fight is important, but in the long run the exclusive focus on civil rights minimizes the positive implications of the social transformation lesbians and gays are helping to bring about. For centuries gay and lesbian couples, along with significant numbers of unmarried heterosexuals, have formed and maintained relationships outside legislative and social approval that have endured persecution and duress for this simple reason: love. This is not to downplay the importance of the marriage license, which comes with rights and responsibilities without which gays and lesbians will never be considered full signatories to the social contract; nor is it to imply that these relationships are perfect. It is rather to point out the nature of gay couples' particular gift, the reward of those lucky enough to be given the wits and courage to survive in the face of adversity. Many of us know as much or more about partnering than those who have fallen into it as a given, who may live unaware of the degree to which their partnerships depend on the support of conventions�including the woman's acceptance of the man's primacy. Baehr v. Lewin represents the logical culmination of generations of challenge, by feminists joined later by gay and lesbian activists, to an institution once almost exclusively shaped by gender roles and organized religion. As such, it presents an historic opportunity to reexamine the performance and practice of the institution on which so many of our hopes, rituals, and assumptions are based; to reconsider what we are institutionalizing and why. Seeking to provide a legally defensible justification for limiting benefits to mixed-gender marriages, the Hawaii attorney general, after years of research, has thus far only confirmed this insurmountable reality: if one subscribes to the principles that government should not serve specific religious agendas and that it should not discriminate on the basis of gender, there is no logical reason to limit marriage benefits to mixed-gender couples. Opponents of same-gender marriage argue that it contradicts the essential purpose of the institution, which is procreation; but the state does not ask prospective mixed-gender spouses if they intend to have children, and the law grants a childless married couple the same rights and benefits as their most prolific married neighbors. Invoking the nation's Judeo-Christian heritage is no help; even if one believes that Christians and Jews should dictate government policy, a few of the more liberal denominations have already endorsed same-gender marriage, and the issue is under serious debate in mainstream churches. How may the state take sides in a theological debate, especially when the parties to the debate are so internally divided? In 1978, the Supreme Court established in Zablocki v. Redhail that a citizen's right to marry is so fundamental that it cannot be denied even to individuals who have demonstrated that they are inadequate to the task. Given that the law guarantees the right of deadbeat dads and most prison inmates to marry, what could be the logic for denying that right to two men or two women who are maintaining a stable, responsible household? * * * The strongest argument against same-gender marriage is not logical but arbitrary: society must have unambiguous definitions to which it turns when faced with conflicts between the desires of its citizens and the interests of its larger community. Marriage is a union between a man and a woman because that is how most people define the word, however unjust this may be for same-gender couples who wish to avail themselves of its rights. Advocates of same-gender marriage respond that "the interests of the larger community" is an evolving concept. That an institution embodies social norms does not render it immune to change�slavery was once socially accepted, just as mixed-race marriages were widely forbidden and divorce an irreparable stigma. The rebuttal is accurate, but it evades the question of where the state draws the line in balancing individual needs and desires against the maintenance of community norms. Why should the state endorse same- gender couples but not (as opponents of same-gender marriage argue will result) polygamists or child spouses? The question is now more pressing because of the prevailing sense of accelerated cultural breakdown, wherein nothing seems secure, not even the definition of ... well, marriage. Surely the triumph of Reaganomics and corporate bottom-line thinking is more responsible for this breakdown of the social contract than the efforts of an ostracized minority to stabilize its communities. In any case marriage and the family began their transformation long before the gay civil-rights movement. By 1975, only six years after the Stonewall rebellion that marked the first widespread public emergence of lesbians and gays, half of all marriages ended in divorce. But in uncertain times people search for scapegoats, and unless gays and lesbians can make a convincing case for the positive impact of our relationships, we are not likely to persuade any but the already converted. Tellingly enough, male writers have been more passionate than women in their attachment to traditional marriage forms. Among gay male writers, Andrew Sullivan (Virtually Normal) and William Eskridge Jr. (The Case for Same-Sex Marriage) have written excellent supporting arguments. Both consider legalization of same-gender marriage a means toward encouraging same-gender couples to model themselves on heterosexual marriage. Sullivan makes an eloquent case for gay marriage but gives only a nod to the high failure rate of heterosexual marriages. Eskridge is sensitive to the women's issues inherent in marriage, but like Sullivan he endorses the institution as it exists, albeit alongside other options for partnering. Along the way he endorses the myth that marriage conveys the means to control extramarital sexual behavior to men (or women) otherwise unlikely to achieve such control, as well as the myth that gay men are more promiscuous than their straight counterparts. More discouraging is Eskridge's acceptance of the assumption that sexual desire is the beast lurking in our social jungle, whose containment is a prerequisite for a moral civilization (he sub-titles his book "From Sexual Liberty to Civilized Commitment," epitomizing in a phrase the puritanical impulse to make bachelorhood equivalent to moral lassitude, where all sexual expression outside wedlock is morally tainted). That sexuality and morality are intimately linked I take as a given; one loses sight of this connection at the risk of one's self-respect and, by extension, one's ability to love others. We are surrounded by evidence of that loss of respect, particularly in television and advertising, whose relentless promotion of amoral heterosexual sex is surely the greatest factor in breaking down public and private morality. But to presume that morality follows on marriage is to ignore centuries of evidence that each is very much possible without the other. Among heterosexual male writers, even the most intelligent dwell in fantasy logic; when they arrive at a difficult point they invoke God (an unanswering authority), or homophohic bombast, or both. James Q. Wilson, management and public policy professor at UCLA, is among the more reasonable, but even he attacks (with no apparent irony) the "overeducated," whom he accuses of mounting a utilitarian assault on the family." As the ninth of nine children of a rural, blue-collar family whose parents (married forty-seven years) sacrificed a great deal to educate their children, I note that the only "overeducated" people I have met are those who take as gospel the rules they have been taught rather than open their eyes to the reality in which they live, who witness love and yet deny its full expression. * * * Not all men and women fall into marriage unconscious of role models, of course. But it's hard work to avoid a form shouted at all of us daily in a million ways, whereas for same-gender partnerships to fall into that form requires deliberate denial. For same-gender relationships to endure, the partners have to figure out that we are required to make them up as we go along. This does not mean that we are always adequate to the task, which is why my friend Frederick Hertz, an Oakland attorney specializing in same-gender partnerships, originally opposed same-gender marriage. "Marriage as it exists imposes a legal partnership on people that is seldom in sync with how they think about their relationship," he tells me. "Marriage is designed to take care of dependent spouses, people who stay home to take care of the children, as well as to compensate for economic inequalities between genders. The idea of supporting a spouse for the rest of his or her life is totally contrary to the way most people nowadays think." Hertz (a partner in a fourteen-year relationship) resists the "couple-ism" that he perceives arising among gays and lesbians because he believes it imitates a heterosexual world in which women whose partners die or abandon them are left with almost no social support. "I talk to straight divorced women in their forties and fifties," he says. "They have a lack of self-worth that's devastating. My single gay friends have a hard enough time�imagine what things would be like for them if marriage were the norm." Then the realities of working with gay and lesbian couples struggling without social approval brought Hertz to an uneasy support of the battle for same-gender marriage rights. Unlike most advocates, however, he qualifies his endorsement by adding that "while we're working for gay-marriage rights we should also be talking about issues of economic and emotional dependency among couples.... A partner can contribute emotional support to a relationship that is as valuable to its sustenance as an economic contribution. We need to find legal ways to protect those dependent spouses." To that end Hertz argues for a variety of state-endorsed domestic-partnership arrangements in addition to marriage, noting that although such categories may create a kind of second-class relationship, they're a step toward the state offering options that reflect contemporary life. "I want to go to the marriage bureau and have options among ways of getting married," he says. "I want the social acceptance of marriage but with options that are more appropriate for the range of couples' experiences-including same-gender childless couples." In other words, rather than attempt to conform same-gender couplings to an institution so deeply rooted in sexism, why not consider ways of incorporating stability and egalitarianism into new models of marriage? Rather than consider the control of sexual behavior as a primary goal of marriage, why not leave the issue of monogamy to the individuals and focus instead on marriage as the primary (though not the only) means whereby two people help each other and their dependents through life? Invoking the feminist writer Martha Fineman, American University law professor Nancy Polikoff argues that organizing society around sexually connected people is wrong; the more central units are dependents and their caretakers. Extrapolating from this thinking, one can imagine the state requiring that couples, regardless of gender, take steps toward attaining the benefits currently attached to marriage. Under this model the state might restrict the most significant of marriage's current benefits to those couples who demonstrate stability. The government might then get out of the marriage-certification business altogether; Hawaii governor Ben Cayetano, among others, has suggested as much. Government-conferred benefits currently reserved for married couples would instead be allocated as rewards for behavior that contributes to social stability. Tax breaks would be awarded, regardless of marital status, to stable lower- and middle-income households financially responsible for children, the elderly, or the handicapped. Other state- or federally-conferred privilege�such as residency for foreign spouses, veteran's benefits, tax-free transfer of property, and the right to joint adoption�would be reserved for couples who had demonstrated the ability to sustain a household over two to five years. The decision to assume the label "marriage" would be left to the individuals involved, who might or might not seek ratification of their decision by a priest or minister or rabbi. The motivation behind such changes would be not to eliminate marriage but to encourage and sustain stable households, while leaving the definition and sustenance of marriage to the partners involved, along with their community of relatives, friends, and�if they so choose�churches. In the most profound relationship I have known, my partner and I followed a pattern typical of an enduring gay male relationship. We wrangled over monogamy, ultimately deciding to permit safe sex outside the relationship. In fact, he never acted on that permission; I acted on it exactly once, in an incident we discussed the next day. We were bound not by sexual exclusivity but by trust, mutual support, and fidelity�in a word, love, only one manifestation of which is monogamy. Polikoff tells of another model, unconventional by the standards of the larger culture but common among gay and lesbian communities: A friend died of breast cancer; her blood family arrived for the funeral. "They were astounded to discover that their daughter had a group of people who were a family�somebody had organized a schedule, somebody brought food every night," she says. "In some ways it was the absence of marriage as a dominant institution that created space for the development of a family defined in much broader ways." I find it difficult to imagine either of these relationships�mine or that described by Polikoff�developing in the presence of marriage as practiced by most of our forebears; easier to imagine our experiences influencing the evolution of marriage to a more encompassing, compassionate place. * * * Earlier I called myself an "AIDS widower," but I was playing fast and loose with words; I can't be a widower, since my partner and I were never married. He was the only child of Holocaust survivors, and he taught me, an HIV-negative man preoccupied with the future, the lessons his parents had taught him: the value of living fully in the present and the power of love. He fell ill while we were traveling in France, during what we knew would be our last vacation. After checking him into a Paris hospital, I had to sneak past the staff to be at his side; each time they ordered me out, until finally they told me they would call the police. Faced with the threat of violence, I left the room. He died alone as I paced the hall outside his door, frantic to be at his side but with no recourse�I was, after all, only his friend. At a dinner party not long ago I asked a mix of gay and hetero-sexual guests to name ways society might better support the survival of gay and lesbian relationships. A beat of silence followed, then someone piped up: "You mean, the survival of any relationships." Everyone agreed that all relationships are under stress, that their dissolution had become an accepted, possibly assumed part of the status quo. The question is not, as opponents would have us believe, will marriage survive the legalization of same-gender partnerships? Instead, the questions are how do society and the state support stable households in a world where the composition of families is changing, and how might same-gender relationships contribute to that end? Denied access to marriage, lesbians and gays inevitably idealize it, but given the abuse the dominant culture has heaped on the institution, maybe it could use a little glamour. In my more hopeful moments, I think gays and lesbians might help revitalize and reconceptualize marriage by popularizing the concept of rich, whole, productive couplings based less on the regulation of sexual behavior and the maintenance of gender roles than on the formation of mutually respectful partnerships. Baehr v. Lewin presents us with a chance to conceive of a different way of coupling, but only if we recognize and act on its implications. Otherwise the extension (if achieved) to same-gender couples of the marital status quo will represent a landmark civil-rights victory but a subcultural defeat in its failure to incorporate into the culture at large lessons learned by generations of women and men�lesbian or gay or straight�who built and sustained and fought for partnerships outside the bounds of conventional gender roles. In Word Is Out, a 1977 documentary portraying lesbian and gay lives, comedienne Pat Bond described butch and femme role-playing among lesbians in the 1950s, roles as unvarying as those of Ozzie and Harriet. "Relationships that lasted twenty or thirty years were role- playing," she says. "At least in that role-playing you knew the rules, you at least knew your mother and father and you knew what they did and you tried to do the same thing.... Now you say, `Okay, I'm not butch or femme, I'm just me.' Well, who the hell is me? What do I do? How am I to behave?" To heterosexuals who feel as if the marriage debate is pulling the rug of certainty from beneath them, I say, Welcome to the club. Gays' and lesbians' construction of community�which is to say, identity�is the logical culmination of the American democratic experiment, which provides its citizens with an open playing field on which each of us has a responsibility to define and then respect his or her boundaries and rules. Human nature being what it is, the American scene abounds with stories of people unable, unwilling, or uninterested in meeting that challenge�people who fare better within a package of predetermined rules and boundaries. For those people (so long as they are straight), traditional marriage and roles remain. But for the questioning mind and heart, the debate surrounding marriage is only the latest intrusion of ambiguity into the artificially ordered world of Western thinking. And Western culture has never tolerated ambiguity. The Romans placed their faith in the state; the Christians, in God, the rationalists, in reason and science. But in marked contrast to Eastern religions and philosophy, all have in common their search for a constant governing structure, a kind of unified field theory for the workings of the heart. The emergence of gays and lesbians from the closet (a movement born of Western religious and rationalist thinking) is only one among many developments that reveal the futility of that search� how it inevitably arrives at the enigma that lies at the heart of being. But the rules are so comforting and comfortable! And it is easier to oppress some so that others might live in certainty, ignoring the reality that the mystery of love and life and death is really grander and more glorious than human beings can grasp, much less legislate. ------------------------ Yahoo! Groups Sponsor --------------------~--> Has someone you know been affected by illness or disease? 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