Since Windsor, and the death of DOMA, the marriage equality struggle here in the U.S. hasn’t had a lot of direct bearing on our family life. Hanna and I are married in the eyes of the state of Massachusetts and our federal government. It is only when traveling to non-equality states (such as my home state of Michigan) — or when we consider distant possibilities of future relocation — that it really hits home for us that our marriage is still legally more fragile than the marriages of our hetero married friends.
So I admit I’ve been watching the journey of same-sex marriage cases through the state and federal circuit courts attentively but not too closely. I’ve been interested, but with little feeling of personal urgency at this juncture, to see how it all plays out.
But today watching the live-blog of oral arguments and later reading the transcript of the same, it was undeniably energizing to see decades of agitation and strategy (yes, on both sides) demonstrably playing out in the wandering, back-and-forth debate that is an oral argument before the Supreme Court.
There’s already been a bajillion and one pieces of commentary published already, and I’m not going to try and be originally wise on any aspect of this case. Yet reading through the transcript, I was struck by two things I wanted to share.The first was how insistent Mary Bonauto was in placing marriage equality within the broader context of queer inclusion in society. Repeatedly, she reminded the justices that marriage was but one aspect of life in which sexual minorities have sought full citizenship. For example:
When we think about the debate, the place of gay people in our civic society is something that has been contested for more than a century. And in this – in the last century immigration exclusions, the place of gay people in public employment and Federal service, these are all things that have been contested and – and you can – you can say 10 years of marriage for Massachusetts, but it’s also in the 1970s that the Baker case from Minnesota reached this Court, and that’s over 40 years ago. (7)
When I think about acceptance, I think about the nation as a whole, and the – and there are place where, again, there are no protections, virtually no protections for gay and lesbian people in employment, in parenting. You know, the Michigan Petitioners, for example, are not allowed to be parents of their own children, the children that the State of Michigan has placed with them and approved of their adoptions. (22-23)
There were limits to this expansive rhetoric — she expressed deep reservations about including more-than-two marriages in the right to marry framework, for example — but given how marriage equality has become shorthand for gay rights in recent years, Bonauto’s decision to embed marriage within the larger context was not inconsequential.
The second surprise, for me, was how moved I was to read these arguments for marriage equality as articulated, on both sides of the bench, by women. And in Mary Bonauto’s case, a woman who stands before the court with a wife and daughters.
As Katha Pollitt recently pointed out, arguments about “gay marriage” have most often been about men. About male sexuality, about fatherhood, about masculinity. The newly minted conservative champions of same-sex marriage are most often men — straight or otherwise — who willingly accept the cultural narrative that marriage is a domesticating institution, and that one of its major social benefits is in holding men accountable to their partners and progeny.
In the forthcoming Just Married, for example, political scientist Stephen Macedo hinges his case for same-sex marriage and against poly marriage on the notion that “equality” requires equality of opportunity, and that if more than two people could form marriages together there would be a surplus of undesirable men (presumably the ones neither straight women or bi/gay men were willing to bed). Monogamy, therefore, is a social good in part because it ensures that the maximum number of men are partnered, and therefore benefit from the civilizing power of marriage.
One wonders what place women with the liberty of choice have in this scenario, since presumably most of us choose our partner or partners without too much thought for our responsibility for lowering the surplus of single dudes. But the absence of women (lesbian, bi, or otherwise) from these arguments is all too familiar.
Thus it was refreshing to have women’s voices testifying to the myriad ways in which social and legal recognition of our families matter. Mary Bonauto was joined, in the court, by Justices Ginsburg, Sotomayor, and Kagan, all of whom pitched in to describe marriage in reference to women’s rights. Possibly one of the most “historic” components of today’s oral argument is that we witnessed a rare instance in which a human rights issue was debated in public by women at the heart of our political system, implicitly and explicitly using women’s stories as exemplary stories.