cross-posted from the family scholars blog.
I often joke with friends and family about how my wife and I are “gay married,” as if this is something different from being … “married.” Perhaps we same-sex couples do everything with our sexual orientation front and center? In that case, this past weekend I celebrated a gay birthday by going gayly out to dinner at a restaurant. I did some gay crocheting, took a gay nap, and wrote a few gay letters to friends.
This is, by and large, a lighthearted amusement. But the “joke” is also grounded in our bone-deep recognition that some people do view every aspect of our lives as unalterably tattooed by our sexual “perversions.” Our being gay — or practicing gay sex — is the attribute that marks us out for differential treatment. Some people would argue it requires differential treatment.
I thought of this other, less amusing use of the phrase “gay marriage” or “same-sex marriage” last Friday when I listened to an On Point news hour reviewing the Supreme Court oral arguments on DOMA and Proposition 8. The host, Tom Ashbrook, spoke with two guests — law professors Suzanne Goldberg (pro-marriage equality) and Teresa Collett (anti-) — about the arguments. In discussing DOMA, Collett followed the lead of defense lawyer Paul Clement, representing BLAG, in arguing that what the DOMA law sought to achieve was not any sort of discrimination between gay and straight marriages, but rather to impose legal uniformity.
From the oral argument transcript (p. 62-63):
Mr. CLEMENT: … Ms. Windsor wants to point to the unfairness of the differential treatment of treating two New York married couples differently, and of course for purposes of New York law that’s exactly the right focus, but for purposes of Federal law it’s much more rational for Congress to — to say, and certainly a rational available choice, for Congress to say, we want to treat the same-sex couple in New York the same way as the committed same-sex couple in Oklahoma and treat them the same. Or even more to the point for purposes -
JUSTICE SOTOMAYOR: But that’s begging the question, because you are treating the married couples differently.
I want to point out a couple of features of this exchange.
The first is that Clement (and Collett, on air) are attempting to erase the anti-gay sentiment that animated the passage of DOMA, something which Justice Kagan highlighted when she read aloud from the House Report during the argument (see p. 74 of the transcript). This “softer” argument makes the case that what the federal government really wanted was sameness — equality if you will! — so that despite marital diversity at the state level, the federal government would only recognize certain types of marriage as actually legal nationwide.
I find this in itself disturbing, in that it attempts to turn DOMA into something that’s almost supposed to benefit same-sex married couples rather than harming them — as if we’re supposed to be comforted, somehow, that our citizenship rights will be the same nationwide … by ensuring that no matter what level of relationship recognition our state of residence provides us, we’ll be firmly denied recognition at the federal level. Consistently.
Equality! Yay! …. oh, wait.
The second (and I think key) feature of this uniformity framing, and the exchange Clement had with Justice Sotomayor above, is that Clement is emphasizing the gay part of being “gay married” and Sotomayor is emphasizing the married part of being “gay married.”
Clement is arguing that regardless of whether a same-sex couple lives in Massachusetts (where we can legally marry), in Illinois (where they have civil unions) or in Michigan (where same-sex couples are denied any form of legal recognition), we will be met with federal uniformity … in that we won’t be recognized, regardless of our state-honored status.
Based on the fact that we’re gayly married, instead of straight married.
Sotomayor pushes back against this emphasis, asking instead “isn’t this treating the married couples differently”? Placing the emphasis on marriage, Sotomayor is correctly pointing out that we do not seek to treat all straight couples similarly, regardless of relationship status. We treat a cohabiting straight couple differently from a married straight couple differently from a divorced straight couple. One might ask, following Clement’s line of argument, why the federal government distinguishes between an unmarried cohabiting couple in Wyoming and a married couple in Maine — shouldn’t they be concerned about uniformity in the treatment of straight couples on a national level?
(As an aside, I actually think this is a legitimate line of questioning — the differential treatment of married and unmarried partnerships — but that is not, realistically speaking, the argument Clement was making. So it is the topic of another post.)
This is not to say that understanding LGBT* identities as political in nature, as social class identities, is never legitimate. Identity politics — coming together with a group of people based on some facet of your identity in order to effect political change — is, of course, sometimes a necessary thing. Often, such class consciousness is made necessary by the way we are targeted as a group by those who hold anti-gay beliefs or take anti-gay actions. I move through my life aware that my bisexuality and my lesbian relationship are key components of my self-conception — and also aspects of my self by which other people both understand and judge me.
I am proud of being both “gay” and “married.”
But I do think that when it comes to marriage law, it should be the married part of that equation that has bearing, not the gay. As someone who is legally married, under laws that pertain to marriage it should be that status which determines whether I am a person to whom the law applies or not.