by Heather Findlay
"It's not a movement."
Rosemary Dempsey, vice president of the National Organization for Women, is getting frustrated. It's not because she is unprepared, much less unimpassioned, on the issue of same-sex marriage. In two separate court cases during the late eighties, Dempsey and her lover fought--and won by the skin of their teeth--two ugly custody battles against their former husbands. Had she and her partner been legally married, proving their competence as parents would have been laughable. So if the Hawaiian Supreme Court forces the island state to recognize gay marriage this fall, Dempsey and her lover (who already held a commitment ceremony in 1993) plan to cut a piece of the legally-sanctioned wedding cake and, if they can, eat the benefits, too.
No, Dempsey has no doubts about the institution which, you will remember, her own organization denounced in the 1970s along with "Mrs.," the vaginal orgasm, and the rest of the feminine mystique. ("For the past 25 years there have been a lot a changes," says Dempsey in defense of NOW's turnaround . "Today's marriage, for the most part, is an egalitarian partnership.") What's frustrating to Dempsey is the fact that, although gay marriage looms Armageddon-like in the minds of religious zealots, the national media, and even congress, gay activists hav e been, well, busy elsewhere. As an issue, laments Dempsey, "it's been foisted on us."
Similarly, when Donna Red Wing realized that Hawaii was likely to legalize gay marriage by the end of this year, she decided she better get her act together. "Gay groups were not putting it forward on the national agenda," recalls the coordinator of Gay and Lesbian Advocates Against Defamation. "We had to deal with it or ignore it--and we couldn't ignore it." Together with Evan Wolfson of the Lambda Legal Defense Fund, the only national gay organization at the time working actively on marriage rights, Red Wing put together the Freedom to Marry Coalition, an umbrella group composed of 40 gay organizations aimed at educating and lobbying the public around same-sex marriage. The coalition gelled just in time to meet head-on Baehr vs. Lewin and the overwhelming backlash by Right-wingers, "moderate" congresspeople, rabid talk show hosts, and of course President Clinton himself.
Why did the gay movement get caught with its ring finger up its nose? In part, ironically, because those who may stand to benefit most from legalized gay marriage--that's right, lesbians--have been fighting to keep marriage off the agenda. After all, according to the theory that built the ideological infra structure of the lesbian movement, marriage is the linchpin of what Adrienne Rich called in 1979 "compulsory heterosexuality." Many lesbians fully opposed this set of laws, customs, and rituals that, says Rich, take control of women's sexuality by severing their bonds with other women and sending them off to Brideland. As a result, said law professor Nancy Polikoff recently to Gay Community News, "For many years the national gay and lesbian rights legal organizations declined to commit resources to lesbian and gay marriages litigation, in part because of vehement opposition, primarily from women."
Another reason national gay organizations avoided the issue of gay marriage is because they knew the match would be played out in the wrong court--the real courts, that is, rather than the court of public opinion, where groups such as the National Gay and Lesbian Task Force felt they had more sway. Baehr v. Lewin may confirm their worst fears. Some fragment of Baehr will probably make its way to the Supreme Court which, despite its recent decision on Amendment Two, hasn't changed significantly since its antisodomy Hardwick v. Bowers days. More soberingly, the judges' arguments in Baehr are not as gay-friendly as you might expect. In fact, some say Baehr isn't really about gay people at all.
The Hawaii Case: Progay?
When Ninia Baehr, her lover, and two other gay couples brought suit against Hawaii's Department of Health for refusing to grant them a marriage license, their lawyers claimed the DOH was violating their state constitutional rights. When the Hawaiian Supreme Court held that "strict scrutiny" should be applied to the state's policy against granting marriage licences to same-sex couples--a very rigorous test the state is likely to fail--gay marriage activists hailed the decision as a major victory.
In a limited sense, it was. When the Hawaiian court reviewed existing case law regarding same-sex marriage--in which panicked judges from Washington to Kentucky were reaching for dictionaries to prove that marriage involves one man and one woman--the Hawaiian judges dismissed the precedents' logic as prejudicial, "circular, and unpersuasive." The judges also made the ground-breaking step of analogizing Baehr to Loving v Virginia, the famous Supreme Court decision which found that the Virginian law against mixed-race marriage was discriminatory and unconstitutional.
But the actual language of the plurality's decision in Baehr can in no way be construed as gay positive or supportive of gay marriage. When it came to deciding in favor of Nina Baehr and her co-plaintiffs, the court did so on the basis of their constitution's Equal Protection Clause (the federal equivalent of which, significantly enough, the Supreme Court cited when it struck down Amendment Two). In other words, the court found that by denying Baehr et. al. the benefits entailed by marriage," on the sole basis that the applicant couple is of the same sex," the DOH had violated their constitutional right to equal protection under the law.
But there's a hitch. Hawaii's Equal Protection Clause guarantees equality on the basis of sex--certainly not on the basis of sexual orientation, for which no state guarantees protection. So the court's decision was, ultimately, a statement against gender d iscrimination, not antigay discrimination. In fact, a number of legal observers have pointed out that, inside the tunnel vision required by the constitutional process, the Baehr court made its decision with straights in mind, e.g., a straight woman who wants to marry but c an't because her fianc\'8ee happens to be a woman. According to attorney Anthony C. Infanti, "the plurality took every opportunity to note that this was not a decision about 'homosexual' marriage, but one concerning 'same-sex' marriage. In making this distinc tion, the court posited the union of two heterosexual women or two heterosexual men."
Huh? The logic seems like legal sophistry, and to some extent it is. The justices could not have been unaware that their decision would have an impact, eventually, on the push for "homosexual marriage" they claimed neither to address nor advocate. (Elsewhere in the decision, in fact, the plurality specifically states that "a right to same-sex marriage is not so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions.") As individuals, the judges could not have been surprised when, in response to Baehr, nearly thirty states and the federal government moved to pass laws preventing same-sex--and they meant gay--marriage. But the Baehr court's reasoning should alert us to the validity of the national gay organization's earlier concerns about fighting for gay marriage in the courts. Strictly speaking, it's arguable that if queer couples ever achieve genuine support for their unions, it will be in despite, not because, of Baehr v. Lewin.
What's more frightening is that the Hawaiian situation may have little impact on the significant number of lesbian and gay couples who are eager to get a Hawaiian marriage license, have a luau, and fly home to apply for tax and health benefits. Mainland lesbians and gays--not to mention travel companies who are scrambling to package "Hawaiian Marriages"--have been banking on the U.S. Constitution's Full Faith and Credit Clause, which requires individual states to honor the "public acts, records, and judicial proceedings" of other states. But the Full Faith Clause exempts a state from up holding another state's law that is "in violation of its own legitimate public policy" (which is how most states have prevented the import, for example, of bigamous marriages). A Hawaiian gay marriage, in short, probably won't hold water in Pete Wilson's California. Moreover, it may be more difficult than it appears to wield the Full Faith and Credit Clause against state legislation--let's not even mention a constitutional amendment--prohibiting gay marriage.
The Lesbian Angle: Ignored?
Back in the home front, activists remain sorely divided on the importance of legalized marriage to gay liberation. But the real division may not be along the lines we expect, that is, between reformists who embrace the legalization of gay marriage as a crucial step towards gay liberation, and radicals who reject marriage as an outdated, patriarchal institution. Reduced to their basic elements, both arguments come off as sadly short-sighted. In light of the fact, for example, that 42% of the lesbian respondents to the 1992 Yankelovicz survey reported they had husbands, it seems that the reformists' reports of the death of compulsory heterosexuality have been greatly exaggerated. Dempsey and Red Wing's insistence on choice, moreover, loses some of its shimmer in light of strong anecdotal evidence that marriage is hardly a free election for straight people. As states move to toughen and limit by definition the bonds of marriage--Wisconsin, for example, is considering an end to no-fault divorce--it's obvious that marriage persists, in a major sense, as a vehicle through which governments regulate individuals' socio-sexual arrangements.
Then again, any lesbian who shuns marriage because it is a patriarchal institution is bound to sound curmudgeonly, and for good reason. From the day s when marriage was predominantly a form of wife capture, matrimonial reforms--including Loving, the removal of "obey" from most vows, etc.--have undoubtedly made marriage a kinder, gentler institution. (According to religious historian John Boswell, queer s have played a central role in this history of reform, to the extent that renegade Presbyterian minister Janie Spaar, who has performed hundreds of gay unions, can insist, "lesbians and gays were the first to redefine marriage as a bond representing love rather than property.") Even the most hard-core lesbian feminist will have trouble disputing that, as Jeff Nickels, founder of the Forum on the Right to Marriage, puts it, "In reflecting on marriage and the patriarchy, we should remember that for gay peopl e this really doesn't apply . . . with two women there would, of course, be no patriarch at all." She'll also have difficulty explaining why, if marriage is a form of female sexual slavery, according to court records the majority of homosexuals who have at tempted to obtain marriage licences have been gay women.
The problem with marriage, gay or straight, may lie not in its patriarchalism, but in its romanticization, the process whereby most Americans--including gay marriage advocates--have come to think of marriage as primarily a question of true love, emotional commitment, and personal election. "The core of our exclusion," New Republic\~editor Andrew Sullivan has been quoted as saying, "is the exclusion from the most important institution which celebrates and affirms love." Nickels promotes marriage in similar terms: "The message," he wrote recently for Gay Community News, "that mainstream society most desperately needs to hear about us is that we love." Even M.V. Lee Badgett and Josh A. Goldfoot, authors f or a gay policy publication, Angles, begin their article on the state fiscal impact of gay marriage with the romaticized definition, "Marriage is a personal and emotional commitment two people make to each other." (Much of this language, as Nickels's statement suggest, assumes a straight audience. Even the Freedom to Marry Coalition's name was developed--based on its playability in Peoria--by a public relations firm in Los Angeles.)
Doubtless the romanticization of marriage, gay or straight, is preferable to doweries, arranged marriage, and wife-as-property. But there have been two troubling side effects of this process: First, it has diverted activists from detailing the concrete (and mostly economic) disadvantages to lesbian and gay couples who are forced to remain single in the eyes of the law. Although gay marriage activists are quick to list the generic benefits denied to gay couples, these benefits are rarely broken down by age, income level, sex, or dollar amounts (see sidebar).
Relatedly, gay marriage advocates--the most visible of whom have been gay men--have failed to describe the specific advantages to lesbians of legalized gay marriage. After celebrity custody and legal guardianship cases such as Sharon Kowalski's and Sharon Bottoms's, that meaning should be clear. "Women," as Dempsey puts it, "have historically had the role of the shepherding of family and children. Without legal protections, however, lesbians stand to lose them." Dempsey adds that in her previous position as an attorney, she met with "four or five new people a day whose lives would be so much easier if they were married."
Tina Podlodowski, the Seattle City Council member who resigned as Clinton's campaign manager in Washington after the president announced he would sign the Defense of Marriage Act, agrees. Podlodowski and her partner had a commitment ceremony three years ago, and have since had a child through alternative insemination. "The reason we'd [get married] is because of child custody rights. It's legal for lesbians to adopt in King County, where Seattle is located, so my lover is legally the other parent. But I have a little piece of fear inside about how that will hold up in the courts if we're challenged."
Gay marriage activists have also overlooked the effects of antigay marriage law in what is, today, a highly politically sensitive realm: immigration. "Most of the promarriage groups are not even addressing immigration," says J.B. Wiley, of the San Francisco chapter of the Lesbian and Gay Immigration Task Force. Although "Family unification" is the explicit goal of the Immigration and Naturalization Services as it grants Visas and residency to U.S. citizens' heterosexual spouses; however, for Wiley and her German lover "it [was] like a cattle car. This country does not recognize 'significant hardship' as a problem for gay couples."
Wiley's co-coordinator at LGITF, Shannon Minter, suggests that immigration has not figured heavily on the same-sex marriage agenda because it affects mainly women and people of color. "The people who have put the most energy into the task force have tended to be white and middle class, but that is not representative of the people who are affected by this issue," says Minter. Not being able to gain citizenship through marriage "has a cruelly disproportionate effect on lesbians as opposed to gay men, because immigration is already set up to work for people with money and education. No doubt about it, that cuts out a lot of women in countries where women don't have access to immigration."
Minter points out that U.S. asylum law--which is a foreign lesbians' only other avenue for automatic citizenship--only recently recognized persecution on basis of sexual orientation. Out of the some 40 cases in which queers have been granted political asylum, however , only five have been lesbians. "The kind of persecution experienced by lesbians in foreign countries," explains Minter, "tends to look like that experienced by women in general, and getting beaten up by your father or husband doesn't count with the INS as 'political persecution.'"Minter adds that, ironically, "forced marriage is a huge issue for many lesbians internationally."
Compulsory matrimony abroad, compulsory singlehood at home--indeed, the situation for lesbian couples looks dire enough to warrant the most rigorous action on the part of the gay movement. The situation is also dire enough, however, to warrant our most rigorous thinking and planning. Without the most systematic analysis of the history and institutionalization of marriage--as was the
case with the gays-in-the-military fiasco, to which current political flack around gay marriage is often compared--those who stand to lose the most will once again see their needs, issues, and efforts go unnoted.
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