Can Marriage Be Saved? | The Nation


Can Marriage Be Saved?

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If you believe social conservatives, marriage in America has been under dire assault for more than a century--from adultery, divorce, feminism, birth control and now, apparently, gays and lesbians, who on May 17, the day Massachusetts began recognizing same-sex marriages, joined this at once venerable and fraught institution. Conservatives have a point; the percentage of married Americans has been in steady decline for decades. And yet, as the annual June hordes at the altar and the dramatic struggle for gay marriage attest, marriage continues to occupy a dominant position in American society. How does one make sense of this confusing marital landscape? We asked a range of writers and scholars to offer their thoughts. Should marriage be abolished? Reformed? How is it that marriage--despite its routine and oft-documented failures--persists as the focus of both our personal aspirations and political struggles? Their responses follow.    --The Editors

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STRUGGLES FOR JUSTICE on behalf of racial minorities have often generated benefits that have enhanced the quality of life for society as a whole. Federal judicial monitoring of police practices arose from efforts to deter racist cops from beating confessions out of black suspects. The legal standards that provide substantial breathing room to publications that make mistakes in criticizing public figures emerged from efforts to safeguard newspapers against crippling libel actions brought by angry segregationists. Many of the key legal rules that protect demonstrators against arbitrary or discriminatory suppression were established by efforts to shield and encourage the black liberation movements of the 1960s. Some of the most impressive feminists and champions of gay liberation found their voices initially in campaigns for African-Americans and other oppressed peoples of color.

This pattern has continued with struggles to free marriage from invidious discriminations actuated by irrational or malevolent prejudices. In 1967 the Supreme Court belatedly invalidated state laws that prohibited people of different races from marrying one another. The Court announced its ruling in the most aptly titled decision in all of American law: Loving v. Virginia. On November 18, 2003, in Goodridge v. Department of Public Health, the Supreme Judicial Court of Massachusetts made history by becoming the first American court to prohibit state officials from withholding marriage licenses from same-sex couples. In the course of its ruling, the Massachusetts Court referred repeatedly to Loving in an obvious attempt to tap into its popularity and legitimacy. Nowadays, after all, no national politician would dare support the laws that, for three centuries, prohibited interracial marriage.

The jurist who wrote Goodridge--a person who should be honored as the judge of the year--Chief Justice Margaret Marshall, is a South African-born white woman whose social consciousness was formed in the crucible of opposition to the apartheid regime and, later, through exertions on behalf of racial desegregation in the United States. Her court's landmark ruling took effect on May 17, which happened to be the fiftieth anniversary of Brown v. Board of Education. Symbolically and substantively, then, there are numerous threads that link campaigns against racism and homophobia at the marriage altar.

Unfortunately, there are some progressive African-American activists who oppose analogizing racial discriminations and sexual-orientation discriminations. The Rev. Jesse Jackson, for example, objects to the analogy, asserting that "some slave masters were gay," that "gays were never called three-fifths human in the Constitution" and that "they did not require the Voting Rights Act to have the right to vote." These objections should be swept aside. Yes, some slave masters were gay. But some were also black. And more to the point, some slaves were gay, as are a substantial number of black people who are descendants of slaves--a fact that Reverend Jackson seems keen to ignore. As for comparisons of legal standing, blacks and other racial minorities currently occupy a higher legal status than do gays and lesbians. In many locales, gays and lesbians are subject to open, unembarrassed and legally validated discriminations in terms of marriage, adoption, employment, housing, public accommodations and military service. Today, governments in America prevent no one from marrying on account of racial difference. But in forty-nine of the fifty states, gays and lesbians are wrongly prohibited from marrying on account of gender sameness. This is an injustice in which all Americans have a stake and against which all Americans should rally.

Randall Kennedy, a professor at Harvard Law School, is the author of Interracial Intimacies: Sex, Marriage, Identity and Adoption (Vintage).

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