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. 









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