The Descent of Marriage?
I'm one of those gay people who's less than thrilled about the prospect of gay marriage. Marriage is a terrible way to distribute resources and benefits like tax breaks, healthcare, immigration status and social security. It's a sexual contract rooted in monogamy, patriarchy and the preservation of private property that historically hasn't worked very well for, oh, women. It's increasingly obsolete and fails to reflect the way most Americans live. And its most vocal proponents--gay and straight--dress it up in all sorts of romantic nonsense that's deeply offensive to single people. They'd have you believe that it's the best and only way to love, have sex, become an adult, rear children and form a household.
So when President Bush prophesied the destruction of the "most fundamental institution of civilization" in his speech calling for a constitutional amendment banning gay marriage, I wasn't sure if I was caught in a nightmare or a daydream. I'd happily be at the forefront of the gay marriage movement if its sinister secret agenda were the abolition of marriage as a legal institution. But that's clearly not where this whole thing is going.
Long expected, Bush's address was painstakingly calculated. Developing a strategy first tested in his State of the Union address, Bush nodded to his right-wing base and fueled mainstream voters' anxieties over the decline of the nuclear family--all without sounding explicitly anti-gay. He never once mentioned the word "gay" and ended with a typically hollow plea for "kindness and good will and decency." He appeared deeply reluctant to take this extraordinary step, as if his hand had been forced by "activist courts" and rogue local officials. And he cast the constitutional amendment as the last line of defense in the preservation of not just traditional marriage, but rule of law, democracy and social order.
Don't let the "compassionate conservative" posturing fool you. Bush's speech was inflammatory, clinically homophobic (defined as "an irrational fear of homosexuality") and a complete mischaracterization of both the gay marriage movement and the constitutional amendment process. Bush used a series of highly ambiguous and manipulative terms to describe the current debate over gay marriage. "Unless action is taken," he said, "we can expect more arbitrary court decisions, more litigation, more defiance of the law by local officials, all of which adds to uncertainty." These actions, Bush added, "have created confusion on an issue that requires clarity."
Now there are a lot of reasons why Americans might be uncertain and confused--like the fact that their government lied to them about the existence of weapons of mass destruction in Iraq--but gay marriage shouldn't be at the top of the list. Bush's speech gains its urgency and gravity by mobilizing a paranoid fantasy of homosexuality as the source of sexual anarchy, lawlessness and social chaos. And Bush isn't the only fear-monger here. When asked about gay marriages on Meet the Press, Governor Arnold Schwarzenegger said, "All of a sudden we see riots and we see protests and we see people clashing. The next thing we know is there's injured or there's dead people." In fact, the California attorney general's office reports no rioting, only peaceful protests and cheekily suggested that perhaps the Terminator had confused San Francisco with "part of his next movie." As far as I know, nobody has ever been injured or killed during a gay wedding--though what happens after nuptial bliss subsides, who can say?
Of course, there is a critique of heterosexuality, marriage and monogamy that's well represented in gay liberation's best and most radical tradition. But if you're looking to overturn "millennia of human experience," as Bush put it, you're better off reading Jean Genet than the Massachusetts State Supreme Court. In fact, there's nothing "arbitrary," antidemocratic or particularly "activist" about the Massachusetts ruling. It's soundly based on the equality provision of the state constitution. It follows in the long tradition of American federalism that allows states to interpret their own constitutions in ways that protect rights beyond those enumerated by the US Constitution. And it cites a wealth of legal precedent that preserves individual privacy and extends civil rights to previously excluded minorities. Cases like Goodridge are exactly why the judicial branch exists.
Moreover, what the Goodridge decision says about marriage is wholly in line with social conservatives' belief that marriage is the linchpin of social order. The majority in Goodridge wrote, "Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private rather than public funds." This is the end of civilization? Sounds pretty status quo to me.
And it's not just in legal language that gay marriage follows convention. Just look at the thousands of gay couples who lined up outside of San Francisco's city hall to get married. With the possible exception of Rosie O'Donnell, there's hardly a scary homosexual among them. Elderly lesbian couples and overweight gay men in matching suits, yes. As for Mayor Gavin Newsom's "defiance of the law," even gay marriage advocates acknowledge that San Francisco's marriage licenses carry symbolic value only. All Newsom did was add some local muscle to a case asking the California State Supreme Court to review the constitutionality of the state's ban on gay marriages. As in Massachusetts, this case will be decided on the equality clause in the California state constitution. And sure, as some states recognize gay marriage and others don't, things can get messy. But that's democracy for you. That's also why we have lawyers.
It's this democratic and inherently legal process that the right wing wants to circumvent with their proposed constitutional amendment defining marriage as between a man and a woman. Not only would it be the first and only constitutional amendment to exclude a group of people from equal citizenship, it threatens to close a debate over the meaning of marriage that more than ever needs to be opened up to include multiple perspectives. Bush can claim that a constitutional amendment is a "democratic action" that allows "the voice of the people" to be heard because constitutional amendments require super-majorities in several elected bodies--two-thirds of the House and Senate and three-fourths of all state legislatures. But the reason for this arduous process is because, once passed, constitutional amendments become permanent, foundational and guiding principles of government (the equally difficult, if not more so, repeal process notwithstanding). Before the Constitution all other laws and legislation bow.
The danger here then extends beyond just a ban on gay marriage. As Lisa Duggan points out, the constitutional amendment may put an end "to all diversification of partnership and household recognition. In one stoke all the hard-won civil union, domestic partnership and reciprocal beneficiary statuses could be wiped off the books, leaving civil marriage, restricted to heterosexual couples, as the sole form of recognition available at the federal, state or municipal level..." (The Nation, March 15). The very fact that an ad hoc menu of household classifications now exists, albeit without equal access for all, indicates that Americans are indeed uncertain and confused, not just about gay marriage but about marriage and family generally. But it also indicates a willingness to experiment with a range of options and to change their minds over time. It's in the very spirit of liberty and democracy then to encourage, rather than radically curtail, this process.
Pro-marriage gays, however, have yet to articulate such an expansive position. They just want a place at the wedding banquet as it's already set. For the moment then, the hegemony of marriage is safe--at least from homosexual corruption. Whether it can withstand long-term social changes, increasing economic insecurity and hurricane Britney Spears is another matter altogether. But as long as straights can, gays should be able to sign a putatively life-long social and economic contract that apparently fails half the time. Good luck to them. It's really progressive queers--who don't want to bolster marriage, but who also don't want to see gay-bashing inscribed as constitutional doctrine--who will need a stroke of fortune. As it stands now, we're damned if we say I do, and damned if we don't.