"Is Marriage Good for Women?"

 

From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage

By Michael Klarman

New York: Oxford University Press, 2012, 266 pp., $27.95, hardcover

 

Debating Same-Sex Marriage

By John Corvino and Maggie Gallagher

New York: Oxford University Press, 2012, 281 pp., $16.95, paperback

 

Here Come the Brides: Reflections on Lesbian Love and Marriage

Edited by Audrey Bilger and Michele Kort

Berkeley, California: Seal Press, 2012,  444 pp., $17.00 paperback

 

A Marriage Agreement and Other Essays: Four Decades of Feminist Writing

Alix Kates Shulman

New York: Open Road, 2012, 184 pp., $14.99, paperback

 

Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage

By Nicola Barker

Houndmills, U.K.: Palgrave Macmillan, 2012, 321 pp.,  $95.00, hardcover

 

 

Reviewed by Ruthann Robson 

  

“Gay marriage” has become a synecdoche for “gay rights,” while “marriage equality” replaces the broader and deeper types of equality and freedom that some LGBT activists envisioned.  But whether one views same-sex marriage as a distraction from more vital feminist and LGBT concerns or the singular issue of our time—or a bit of both—it is undoubtedly a powerful presence in American culture, politics, law, and classrooms.   This attention will only heighten as the United States Supreme Court hears oral arguments in March on the constitutionality of two laws banning same-sex marriages—California’s Proposition 8 and the federal Defense of Marriage Act (DOMA)—with decisions anticipated in late June.   Marriage and same-sex relationships remain an undeniable interest of authors and publishers, with several new books engaging same-sex marriage controversies from various perspectives and attempting to appeal to different audiences.

Michael Klarman’s book, From the Closet to the Altar, is a history written from a scholarly and detached perspective.  As a law professor and historian, Klarman predictably uses litigation as his focal point, although he also integrates social history.  He writes as an outsider, albeit a sympathetic one, and tellingly his book has a surfeit of citations to the New York Times.  He views “gay marriage” as “inevitable,” but he also advances the backlash theory of  social change.  Although others have seriously disputed the certainty, or even the reality, of backlashes against litigation victories, the theory accounts for Klarman’s interest in same-sex marriage controversies.  His previous work argued that the landmark opinion in Brown v. Board of Education generated such a potent political backlash in the South that it retarded progress toward racial equality.  From the Closet to the Altar shifts the focus from race to sexuality, but it makes a similar argument.

This does not mean that Klarman confines his discussion to negative reactions.  He also includes the liberatory possibilities that litigation success can spark. For example, he points out, “Whereas previously gays may have chosen not to desire marriage in order to avoid the pain of wishing for something that was beyond reach,” after some litigation victories, “marriage became more desirable because it was more attainable.” Klarman’s view of gay liberation is confined to marriage, decidedly gender-neutral (if not male), and often condescending.  

Indeed, scholars, activists, advocates, and perhaps even long-time casual observers might find it difficult not to feel a bit crabby about this book from Oxford University Press by a Harvard law professor.  On the one hand, it lets us know that white male heterosexual elites have recognized the issue as important, even if we needed more confirmation of that fact after the “superlawyers” who opposed each other in Bush v. Gore—the US Supreme Court decision that essentially decided the 2000 presidential election—joined forces to litigate against California’s anti-same-sex marriage voter initiative, Proposition 8.  On the other hand, the account lacks passion.  While the book gathers together the history, much of it has been told before in books such as Pat Cain’s Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement (2000) and Courting Justice: Gay Men And Lesbians v. the Supreme Court by Joyce Murdoch and Deb Price (2001)—both of which take a broader view of LGBT issues.  While Klarman’s book might be seen as an update, it is probably destined to become outdated soon.

Some of the underlying issues before the Supreme Court, or any court considering the constitutional issues involved in same-sex marriage, are explored in Debating Same-Sex Marriage, co-authored by John Corvino and Maggie Gallagher.

Largely stripped of legal jargon and judicial standards, the authors advance their own arguments and try to dispel the opposing ones.  Corvino, a philosophy professor, provides handy labels for different types of arguments and interweaves personal narratives, including his own.  Gallagher, the co-founder and former president of the National Organization for Marriage, predictably argues against same-sex marriage, saying it undermines opposite-sex marriage.  The book includes each writer’s responses to the other, and the overall tone is one of civility.  Thus, it could be an excellent model for undergraduate students unfamiliar with the issues and could lead to interesting reflection writing assignments. However, a more wide-ranging anthology, Same-Sex Marriage: Pro and Con: A Reader, edited by Andrew Sullivan and originally published in 1997, updated in 2004, might be even more amenable to undergraduate courses seeking to engage the debate.

Yet perhaps dialogue is futile.  As Gallagher correctly observes: “Millions of words at this point have been splattered over print or lit up in pixels or printed in ink in newspaper articles, legal briefs, blog postings, and scholarly essays.” She contends that all of this discussion has failed to achieve agreement, even as she fails to credit the tremendous shift in popular opinion, especially among younger people, toward an acceptance of same-sex marriage.  Gallagher’s claim is even larger, however: she believes that that there has been a failure even to “achieve disagreement.”  By this she means that each side fails to truly understand the other’s arguments.  Perhaps this is true, but she quickly characterizes this failure to understand as “mostly one-sided.”  Not surprisingly, she states that it is those who disagree with her who fail.

In fact, Gallagher’s arguments are easy to understand, because they are often simply restatements of her ultimate position: “If gay marriage prevails, the law—and the society it helps form—will be premised on a falsehood. Same-sex and opposite-sex couples are not the same, or even very similar.”  The difference, for Gallagher, is that marriage should be a “regulator of opposite-sex relationships that give rise to children.” Similarly, her reflexive statements that an anti-same-sex marriage position is not bigoted, and that the real bigotry is against those who do not share the supposedly elitist view favoring marriage equality, remain at the superficial level of mere assertions.  Perhaps what Gallagher means by understanding her arguments is not, after all, achieving disagreement but rather agreeing with her premises.

It might seem unfortunate to feminists that Maggie Gallagher—a living refutation to any feminist tendencies toward political essentialism, just as Phyllis Shlafly was for a previous generation—represents the anti-same-sex marriage position while Corvino, a gay man, is its advocate.  If so, the anthology Here Come the Brides! is a wonderful antidote, since it places lesbians at the center. 

Here Come the Brides!, edited by Audrey Bilger and Michele Kort, is a mix of first-person narratives inflected with political commentary, practical tips, humor, and activism, as well as a few cartoons and photographs.  It’s accessible, provocative, fun to read, and a perfect anniversary gift.  In the best tradition of feminist anthologies, it includes a commendably representative range of lesbians and viewpoints.  The editors explicitly grapple with the double-edged sword (some might even say labrys) that is marriage for lesbians, writing in their introduction,

Given the secondary status of women, bonds between them, particularly intimate ones, redefine the political landscape as well as the domestic realm.  Viewed this way, lesbian marriage can perhaps be seen as a source of growing power for women.  But we’re mindful, too, of the dangers of women involving themselves in an institution that has been so deeply rooted in a male-dominated system of authority.

The anthology, however, is heavily tilted toward the empowerment perspective, although often tempered with a heavy dose of realism, discouragement, and wit.  Among the best of the essays is “My Trojan Dress” by Kari Lerum, who decidedly sees her wedding as “a slap in the face of heterosexism” for which she must dress appropriately, and “Eschaton, or The Gay Divorcees,” by Erika Dyson, who refreshingly confronts the pressures to marry, the failure to “live up to” the expectations of married life, and the difficulties, legal and otherwise, of terminating a marriage—although she seems to be contemplating remarriage.   Followers of same-sex marriage litigation and scholarship will delight in the essay by the economist M.V. Lee Badgett, whose work has been a cornerstone of a same-sex marriage advocacy, in which she sentimentally concludes that the “true value” of marriage “can’t be measured with dollar signs.”  More critical of the same-sex marriage “bandwagon” are Holly Hughes, Linda Villarosa, and Stephanie Schroeder, who advance critiques of same-sex marriage from an explicitly lesbian-feminist perspective.

For those needing a refresher course in the feminist critique, there is the new compilation by Alix Kates Shulman, the author of the classic Memoirs of an Ex-Prom Queen (1972, 2007).  Shulman’s A Marriage Agreement and Other Essays is another personal and political mix that includes pieces from the early days of the second wave of feminism, such as the title essay, originally published in 1970.  While not focused on same-sex marriage, and in fact not confined to marriage, Shulman’s essays provides a much-needed feminist and historical perspective.  In the original “Marriage Agreement” essay and the subsequent one that reflects on it and its publication history, Shulman situates herself as a reformer within a heterosexual marriage.  Given this stance, her perspective might be provocative for same-sex couples who seek to reform the patriarchal legacy of marriage.  For example, Shulman’s partnering and parenting agreement with her husband included the declaration, “We reject the notion that the work which brings in more money is more valuable.” Flowing from this was an equal division of housework and child-care, or at least the attempt at it, often expressed in very specific terms (“Wife strips beds, husband remakes them”). In a more recent selection in the book, “Help Wanted: Other Woman,” the marital issue is monogamy, but with a twist.  Shulman’s husband, now suffering from dementia, is having what Shulman terms an “affair” (her quotation marks), which she welcomes, with his caretaker.  Yet again, Shulman is raising issues common to all marriages, whether heterosexual, same-sex, or feminist.

Whether or not marriage is good for women—or two women—remains the central question.  It’s the crux of Nicola Barker’s excellent book, Not the Marrying Kind, which encompasses the feminist perspective of Shulman’s, the lesbian focus of Here Come the Brides!, the engagement with the arguments of Debating Same-Sex Marriage, and the legal scholarship of From the Closet to the Altar.  It adds an international perspective by including not only the US, but also the UK, Canada, South Africa, Israel, and the European Court of Human Rights. It also highlights legislative reform.  Barker is a legal academic in the UK, but one steeped in lesbian and feminist theories, and she writes as a member of her communities.  Her discussions do not portray the lesbian or larger LGBT communities as monolithically desiring marriage, but rather as critically engaged in questions of formal equality. She is scrupulous about presenting the complexities of opinions, theories, and strategies across several continents.  Even readers who have been following these developments for years or are suffering from same-sex marriage fatigue will benefit from Barker’s insightful discussions.  The book is essential reading for anyone seriously engaged in thinking about same-sex marriage.  Unfortunately, it bears a hefty price tag crying for immediate remediation through a paperback or ebook. 

While Barker provides a superb overview of same-sex marriage litigation and legislation, situated in community activism and larger developments in marital and family law, her purpose is not simply to rehearse the legal arguments and judgments, or even the critical theories.  Instead, the central issue she tackles is whether the feminist critiques of marriage have relevance when the marriage is between partners of the same gender.  This is a large, yet deeply pragmatic and personal question.  For example, she writes that while “perceptions of the ideal marriage may have shifted to a more egalitarian and negotiated division of labour,” a kind of “justified inequality” can be based on the pragmatic conclusion that it simply “makes sense” for the partner earning less money to do more of the household work. Yet this “sense,” for Barker, should be subject to feminist analysis.  Even in a same-sex partnership, the world remains gendered: a person in a traditional feminized occupation most likely earns less than her partner in a traditional masculine occupation.  Moreover, Barker observes that the very notion that household work is privatized within the family is a deeply gendered concept. 

After reading Barker, feminists will no longer be able to simply equate “marriage equality” with equality, whether for LGBT persons or from a feminist perspective.  And that is important, no matter what the courts, legislatures, and referenda in the United States decide.
             

Ruthann Robson is professor of Law and university distinguished professor at the City University of New York School of Law.  Her books include Lesbian (Out)Law: Survival Under the Rule of Law (1992), Sappho Goes to Law School (1998), the three-volume edited collection, Library of Essays in Sexuality and Law (2011), and the forthcoming Dressing Constitutionally: Sexuality, Hierarchy, and Democracy from Our Hairstyles to Our Shoes.



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