Friday November 6, 2009

Reading	Eskridge, William. "A History of Same-Sex Marriage." The Case For Same-Sex Marriage. New York: The Free Press, 1996. 15-50.
Supplemental Reading	Eskridge, William. "The Constitutional Case: Discrimination." The Case For Same-Sex Marriage. New York: The Free Press, 1996. 153-182.
Assignment	Students should come to class with ideas for their thesis written down.
Goal	To review the long history of same-sex marriage and produce an understanding of the nature of marriage throughout the (not very) distant past. The supplemental reading contains many of the arguments in favor of the legalization of same-sex marriage as articulated by Yale law Professor Williams B. Eskridge, which we will see reproduced (and repudiated) in many marriage equality cases to follow.

The Miscegenation Analogy: marriage essentialized around racial purity is now changed to marriage essentialized around the concept of a “husband” and a “wife” (which is an inherently gendered concept similar to the ways that racial purity is inherently racist).

“A Man can simply not be a wife, nor a mother, and a woman can not be a husband, nor a father. In the same way that begetting a child is defined by gender – that is, it requires the sexual union of a male and a female [marriage] is likewise defined by gender” (Cooper & Bronster 37).

As with the miscegenation taboo, the effect that the taboo against homosexuality has in modern American society is, in large part, the maintenance of illegitimate hierarchy; the taboo accomplishes this by reinforcing the identity of the superior caste in the hierarchy, and this effect is at least in large part the reason why the taboo persists. Laws that discriminate against gays are the product of a political process that is biased by sexism. They implicitly stigmatize women and they reinforce the hierarchy of men over women. Laws enforcing the taboo against homosexuality therefore violate the fourteenth amendment, whether the amendment is theorized as prohibiting a tainted decisionmaking process (John Hart Ely’s process-defect theory), (Karst’s) the imposition of stigma, or the disadvantaging of groups.

Consider how these arguments for and against same-sex marriage are replicated in the contemporary debate as exemplified by David Boies' editorial in the Philadelphia Inquirer,"Yes, It Is A Fundamental Right":

There are five basic arguments that are made to support state prohibitions. First, it is argued that the prohibitions are the result of the democratic process. This is true but irrelevant to the constitutional question. The purpose of constitutional guarantees of equal protection and due process is to limit the power of the majority to restrict minority rights.

Second, it is argued tautologically that marriage by definition is between a man and a woman. That is the question, and a circular answer does not advance the analysis. In fact, marriage is not, and has not been, limited to persons of different sexes. Not only are there historical examples, but there are a number of states in this country (including Connecticut, Iowa, Maine, Massachusetts, New Hampshire, Vermont, and California before the passage of Proposition 8) and a number of foreign nations (including countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada) that have embraced gay and lesbian marriage.

Third, it is argued that same-sex marriages are inconsistent with religious teachings. As a Christian, I would disagree. (See Matthew 22:35-40.) As a lawyer, it is irrelevant. The First Amendment guarantees the right of religious opponents of gay marriage to express their personal disapproval of such unions and the right of churches that forbid same-sex marriages not to perform them. But the same First Amendment, as well as the due-process and equal-protection clauses, precludes anyone from using state law to enforce his or her religious beliefs on others.

Fourth, it is sometimes argued that permitting gays and lesbians to marry will somehow undermine heterosexual marriage. There is no evidence that this is so, and contrary evidence from places where same-sex marriage is permitted. Moreover, it is difficult to the point of impossibility to envision two heterosexuals in love deciding not to marry, or to get a divorce depending on whether their gay neighbors are permitted to marry.

Fifth, it is argued that it has "always" been true that gays and lesbians have been prohibited from marrying. As already noted, this has not been, and is not, true. Moreover, as Justice Anthony M. Kennedy elegantly wrote in Lawrence v. Texas, rejecting the notion that a history of discrimination might trump constitutional rights:

"Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

Can you think of other arguments to oppose states legalizing marriage for same-sex couples? What would Eskridge or Koppelman respond?

	CSP 19: Gender, Race and Gay Rights in the Obama Era Fall 2009

	History of Same-Sex Marriage. Friday, November 6, 2009