Equality Practice

Civil Unions and the Future of Gay Rights

William N. Eskridge, Jr.

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135313791
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

William Eskridge, a Yale law professor chronicles the Vermont law which legalised civil unions - distinct from marriage - for same sex couples.

CHAPTER ONE

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Same-Sex Marriage and the Politics of Sexuality

FOR MOST OF THE TWENTIETH CENTURY, legally recognized same-sex marriage was unthinkable. “Homosexuals” were a despised group, outlaws hunted by the state. The most practical strategy was denial of one's sexual orientation and practices—a lifelong masquerade, as people termed it for most of the century. An open relationship with another person of the same sex would have exposed the masquerade, and applying for a marriage license would have been a ticket to prison. After World War II, homosexuals came to see themselves caught in the dilemma of the “closet”: the secrecy that protected them also suffocated them.¹ Some of those who felt this suffocation or who had been pushed out of the closet (usually by the state) objected to their treatment by the state. At first, their horizons were narrow. The early homophile movement was largely limited to a politics of protection: the state engaged in episodic campaigns to protect children and public spaces against homosexuals, who in turn fought to protect their private spaces and subcultural institutions (bars, clubs, journals) from state intrusion. Under such a regime, same-sex marriage was not a realistic goal.

This politics began to change in the 1960s. Inspired by the civil rights movement, some homosexuals publicly insisted that the state treat them the same as everyone else. The Stonewall riots of June 1969 stimulated thousands of queer people to come out of their closets and create hundreds of organizations insisting that the state not only get off their backs but assure them equal rights other minorities had achieved. The post-Stonewall “gay rights” movement not only demanded that states repeal sodomy laws, but that states and municipalities adopt new laws prohibiting public and private discrimination on the basis of sexual orientation. Nancy Fraser calls this a politics of recognition, which she distinguishes from a class-based politics of redistribution. As she notes, “Gays and lesbians suffer from heterosexism: the authoritative construction of norms that privilege heterosexuality. … The remedy for the injustice, consequently, is recognition, not redistribution. Overcoming homophobia and heterosexism requires changing the cultural valuations (as well as their legal and practical expressions) that privilege heterosexuality, deny equal respect to gays and lesbians, and refuse to recognize homosexuality as a legitimate way of being sexual.”² Once gay, lesbian, bisexual, and transgendered (GLBT) people engaged in a serious politics of this sort, state recognition of same-sex marriage was not only conceivable, but many GLBT people considered it the ultimate goal, the crowning achievement. Lesbian and gay couples' petitions for same-sex marriage were uniformly unsuccessful in the 1970s but won a series of dramatic court victories in the 1990s.

Recognition is not the end of the story, however. Progay politics straightaway begat a countermovement by “traditional family values” (TFV) people for whom gay rights were threatening. Opposition to gay rights has thus become a kind of identity politics for religious fundamentalists and others who fear progay changes in public law as corrosive of their republican vision for America and who view sexual orientation antidiscrimination laws as infringing on their family values and their rights as parents, coworkers, and landlords not to associate with lesbians, bisexuals, or gay men. Theirs is what I call a politics of preservation.³

Same-sex marriage has been a godsend to the politics of preservation. Not only is it an issue where such a politics can be successful, but it expands the base of that politics: ordinary people who are not concerned one way or the other about gay rights, or who consider the whole matter too icky to contemplate, can be stimulated and recruited into antigay activism by the marriage issue. Thus, after same-sex marriage broke through with a favorable decision by the Hawaii Supreme Court in 1993, the antigay politics of preservation mobilized as never before— persuading the federal government, most states, and even tolerant Hawaii to legislate against “homosexual marriage.” Although this second wave of same-sex marriage lawsuits came close to establishing a beachhead in Hawaii, it crashed against the shoals of a preservationist politics stronger than anyone imagined it could be on the eve of the millennium. Ultimately, the Hawaii experience suggests how lawsuits and other mechanisms of the law can affect politics in unpredictable ways. The same-sex marriage lawsuit in that state was agenda-seizing: it contributed to the politics of recognition by stirring the aspirations of GLBT people everywhere in the country, while at the same time fueling the politics of preservation by providing it with an easy object for mobilization on behalf of traditional family values.

FROM PROTECTION TO RECOGNITION AND PRESERVATION: THE FIRST WAVE OF SAME-SEX MARRIAGE LAWSUITS

For most of the twentieth century, it was a crime throughout the United States to have intercourse with someone of the same sex, to solicit or even suggest such an interaction, or to transgress gender-based dress codes. GLBT people were social outcasts and legal outlaws. Most such people were able to closet their sexual or gender variation from the mainstream, but one effect of the closet was that sexual and gender minorities were not able to refute stereotypes and prejudice against them and were not politically active. The early homophile movement focused its energies almost exclusively on a politics of protection—seeking to head off or ameliorate state violence against sexual minorities through official arrests, raids, harassment, and witch-hunts.⁴ The most gay people could expect from this politics was don't ask, don't tell. In this environment, legally recognized same-sex marriage was virtually unimaginable.⁵

The Mattachine Society of Washington and its leader Franklin Kameny envisioned a different kind of politics in which homosexuals would be treated as free and equal citizens and not as tolerable misfits.⁶ Directly inspired by the African-American civil rights movement, this was a nascent politics of recognition. For homosexuals, this politics required people to come out of their sexual and gender closets, which did not happen on a large scale until the Stonewall riots in June 1969; then the handful of homophile organizations of the earlier 1960s were overwhelmed by hundreds of gay and lesbian groups demanding equal rights.⁷ The post-1969 gay rights movement sought not only to repeal state policies penalizing people for their sexual orientations and consensual private activities, but also to assure GLBT people the same rights and obligations straight people took for granted.

Should equality include the right to marry? That was a contentious topic. Most lesbian and gay radicals maintained that the husband-wife marriage with children was “the microcosm of oppression.”⁸ Radical lesbians drew from feminist theory the criticism that marriage is a patriarchal institution.⁹ Traditionally, women lost their legal personhood when they got married, and husbands held near-absolute sway over their wives' bodies as well. The liberalization of marriage freed women to have some legal personhood but still subordinated them to their husbands, who remained practically and often legally immune from most charges of rape, beating, and economic manipulation. Living in Berkeley, California, in the early 1970s, Nina Beck shared this philosophy: her lesbian orientation and feminist philosophy made her unreceptive to legal marriage, even marriage to another woman. Same-sex marriage would just ape the structure of traditional marriage, she felt. It would be better for GLBT people to create their own institutions of love, nurturance, and commitment—families we choose rather than families forced onto us by the state and blood relatives.¹⁰

Other radicals objected to marriage because of its insistence on monogamy. For these critics, gay liberation was most fundamentally a challenge to America's pervasive sex negativity. By confining sexual expression to one's marital partner—whether of the same or different sex—marriage was reactionary because it was the embodiment of sex negativity.¹¹ Some sexual-liberty radicals drew from Marxist theory the critique that monogamy objectified the marital partners because it extended “[c]ompetition and exclusive possession, traits of the marketplace, … to erotic relations among persons.”¹² Like the radical lesbians, the sexual-liberty radicals rejected the idea that gay liberation should be just a politics of recognition. Although the radicals supported equal rights for GLBT people, they maintained that activism ought to be a politics of transformation. Hence, lesbians and gay men ought to join women and people of color not only to get outsiders the same rights insiders had long enjoyed, but also to renovate the house in which all lived—not just a place at the table, but a new table.

When the National Coalition of Gay Organizations drew up a list of demands for law reform in 1972, it included as a key item in its agenda “[r]epeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit and extension of the legal benefits of marriage to all persons who cohabit regardless of sex or numbers.”¹³ This demand was a compromise between the two kinds of politics (recognition and transformation) that GLBT people were engaged in. The National Coalition did not advocate the abolition of marriage, as radical lesbians favored, nor did it directly attack the monogamy requirement, as the sexual radicals urged, but it did insist on a major transformation of the institution as well as making it available to most gays and lesbians—a compromise that could have appealed to Nina Beck. Thus, the demand spoke not only to the radical critics, but also to the thousands of GLBT people who had a yearning to get married to persons considered by the law to be of the same sex.

Of course, none of the demands of the National Coalition was acceptable to mainstream politics. But one of the demands—for same-sex marriage—could easily be expressed in terms of constitutional rights, by reference to the race discrimination precedents set by the U.S. Supreme Court under Chief Justice Earl Warren. Thus, at the very point when activists were deliberating over the kind of politics gay liberation ought to emphasize and what ought to be its stance toward marriage, lawyers and their gay and lesbian clients were engaging in a preemptive strike. By filing lawsuits challenging their exclusion from marriage laws, same-sex couples not only put their politics of recognition at the forefront of the gay agenda, but also made it harder for more radical proposals to be floated later on. The structure of American public law played a role in a process by which marriage became the situs for cutting-edge gaylegal reform.

The First Wave of Same-Sex Marriage Lawsuits

In the 1970s, the gay politics of protection won state legislative repeal of sodomy laws in most states and police nonenforcement of such laws almost everywhere else, an abandonment of antihomosexual witchhunts at both state and national levels, and an easing in government censorship of homoerotic publications. At the same time, their politics of recognition also made headway, as the federal government and some states adopted public nondiscrimination policies and many municipalities adopted laws prohibiting sexual orientation discrimination by private organizations.¹⁴ Radicals made virtually no progress in petitioning the law to transform or abandon traditional institutions, but neither did couples desiring to join that institution.

This is not to say that such couples didn't try to crash the institution of marriage throughout the 1970s. Their applications for marriage licenses triggered internal dialogues within state bureaucracies as to whether state law excluded same-sex couples and whether any such exclusion was constitutional. Almost no one dared say that same-sex couples were entitled to such licenses. One of the few exceptions was Cela Rorex, the court clerk in Boulder, Colorado. With the concurrence of the district attorney, she issued marriage licenses to same-sex couples in 1975—and raised such a fuss that the state attorney general intervened to stop her.¹⁵ Colorado refused to honor any of the licenses Rorex issued. More typical was the experience in Vermont, whose clerks obediently followed the state attorney general's written opinion that the “legislature has proscribed homosexual marriage.”¹⁶ That was the end of the matter in Vermont during the 1970s, but in other states spurned same-sex couples sued the clerks to get their marriage licenses.

Richard John Baker met his partner, James Michael McConnell, in graduate school. When Baker matriculated as a law student at the University of Minnesota in 1970, McConnell moved there with him and got a job as a cataloger at the university. They asked their priest, “Do you feel that if two people give themselves in love to each other and want to grow together with mutual understanding, that Jesus would be open to such a union if the two people were of the same sex?”¹⁷ The priest felt Jesus would be open to such a union. Baker and McConnell applied for a marriage license, which the state denied. They got married anyway, in a religious ceremony, and...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Prologue and Acknowledgments
• Chapter One Same-Sex Marriage and the Politics of Sexuality
• Chapter Two The Vermont Civil Unions Law
• Chapter Three Comparative Law Lessons for the Same-Sex Marriage Movement.
• Chapter Four Civil Unions and Liberal Jurisprudence: Equality Practice
• Chapter Five Equality Practice and the Civic Republic
• Chapter Six Equality Practice as a Postmodern Cultural Form
• Epilogue Equality Practice, the Evolution of Social Norms, and the Future of Gay Rights
• Notes
• Index