Protesters rally for marriage equality at the Supreme Court on the day DOMA was ruled unconstitutional. (AP Photo/Charles Dharapak)
Lesbian and gay people and their families have much to celebrate in the Supreme Court’s rulings in the DOMA and Proposition 8 cases. While not going so far as to declare a constitutional right for same-sex couples to marry, Justice Kennedy’s decision in Windsor called out DOMA as an unambiguous expression of animus toward gay people, decrying it for writing “inequality into the entire United States Code.”
But winning at the Supreme Court doesn’t settle the problem of injustice in one fell swoop. The NAACP’s 1954 victory in the Brown v. Board of Education case didn’t put an end to racism in public education. Instead, African-American families were confronted with the difficult, often violent task of integrating their children into school districts that had been structured around racial separation in communities that presupposed their children’s inferiority.
Rolling out the promise of equality secured for same-sex couples in the Windsor decision will no doubt be met with pushback and hostility, but the process is likely to engender far less violence and resistance than the implementation of the Brown decision did. In fact, we already have quite a bit of experience integrating same-sex couples into the institution of civil marriage—twelve states and the District of Columbia have lifted the ban on gay marriage and tens of thousands of same-sex couples have gotten marriage licenses as a result. So what can we expect in the aftermath of the Supreme Court’s ruling?
For many lesbian and gay couples this transition from exclusion to inclusion has been long-sought: a marriage license delivers the state’s imprimatur to relationships that have suffered second class status before the law for no reason other than bias.
For others though, the transformation from partners to husbands of husbands and wives of wives isn’t going so smoothly. Most straight couples have always seen marriage as the natural end-point of a serious committed relationship. Not so with same-sex couples. Long accustomed to organizing our intimate lives well outside law’s reach, our relationships have been less influenced by the magnetic pull of the marital form. Gay and lesbian couples have innovated a range of commitments to one another: sometimes monogamous, sometimes not; sometimes sharing assets, sometimes not; sometimes committing forever, sometimes not, sometimes sharing parenting responsibilities, sometimes not. Many of us treasure the freedom that living outside marriage provides while also recognizing the stigma and discrimination that laws barring same-sex marriage created.
Now that marriage is increasingly possible for same-sex couples, new spouses will find themselves governed by a set of legal rules that allocate rights and responsibilities and distribute and redistribute property in ways that were developed with heterosexual relationships in mind. After all, marriage has been one of society’s most gendered institutions. In the bad old days, husbands were expected to be breadwinners while wives stayed home, took care of the kids, and kept the household running. Feminist reforms in the past fifty years pushed marriage law to come to terms with the gender inequality that flows from these rigid roles of husbands and wives. Modern rules of support within marriage and rules of distribution upon divorce are designed to correct the underlying structural gender inequality that left wives penniless and husbands well-off after divorce. In a relationship where the wife stays home to take care of the kids and the house while the husband builds a career, the old rules would treat his investment in his career and his labor-market power as “his” to take with him at the end of the marriage, while the wife’s failure to invest in her own labor-market power would be a “cost” she would have to absorb herself. Modern rules of equitable distribution treat the wife’s work at home as integral to the husband’s ability to better his career, and as such divorce law now considers his labor-market power a marital asset to be divided fairly between the two spouses.