During yesterday’s Supreme Court session, Chief Justice Roberts questioned whether sexual orientation even needed to be addressed in evaluating the constitutionality of same-sex marriage bans and briefly argued that the case could be evaluated from the perspective of gender discrimination, which is a federally protected class unlike sexual orientation: “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
For quite some time one of the primary arguments against the prohibition of same-sex marriages is that it discriminates based on sexual orientation, and violates the equal protection clause of the Fourteenth Amendment, even though sexual orientation currently falls under the lowest level of judicial scrutiny. Examining this case from the perspective of discrimination based on gender rather than sexual orientation not only provides a novel perspective, one I had never considered before, but also mandates the court apply a more rigorous level of scrutiny.
Upon further self-reflection, I’ve concluded that using sexual orientation discrimination as a basis of disputing same-sex marriage bans to be a poor argument in the pursuit of marriage equality.
Sexual orientation is incredibly complicated, even if we like to give it very clear-cut labels, such as gay or straight. While humans like to classify any number of things using a two paradigm system, sexual orientation is more of a spectrum rather than definitive categories. While some people might readily identify as either gay or straight, others might identify as bisexual, pansexual, polysexual, asexual or any other number of terms. Additionally, when you look not only at cis-gendered individuals, but also throw transgendered, a-gendered and other individuals who identify as genderqueer into the mix, sexual orientation becomes incredibly complicated and very personal.
Furthermore, using sexual orientation as an argument to support same-sex marriage frankly cheapens the entire institution of marriage and reduces it to merely a sex act. While sexual attraction is certainly a factor in most modern marriages (at least initially), it likely isn’t the only factor involved when two people decide to marry; after all, most of us have probably either had sex with or have been sexually attracted to people who we would never marry in a million years. Typically when people start dating each other it be can primarily attributed to superficial reasons, such as looks. Even in the advent of technology and online dating, almost every online dating site and app continues to make use of this superficial attraction though the use of profile pictures, most notably of these being Tinder which has users make snap judgements based on sexual attraction and swipe right or left accordingly. However, over time most long-term relationships deepen and transcend sexual attraction. While one certainly hopes that even after many years of marriage both spouses still find the other attractive despite how much our bodies physically change throughout our lifetime, there are often a myriad of reasons why we marry and continue to be married to a particular person, both tangible and intangible. Additionally, even though romantic marriages are by far the norm in American culture, people may decide to get married of a number of other reasons, be economical, social, cultural, religious or something else entirely.
When I reflect on reasons why I married my husband almost five years ago, I can think of a number of reasons: he’s intelligent, knows how to make me laugh, is easy to get along with, takes care of me, is fun to spend time with, and is handsome too… all tangible qualities that I could use to describe someone else. But even if I listed all the good (and bad) qualities I associate my husband with, there is so much more that factored into my decision to marry him; intangible reasons which we humans often describe as love.
For a word that we frequently dole out in casual conversation, love is incredibly difficult to describe. Additionally, we love different people in different ways, and I think it’s truly impossible to describe this feeling precisely to another person, despite how frequently love is a subject of songs, poetry and other forms of art. I don’t think we can truly help who we fall in love with. Love is irrational and it’s why love sometimes hurts.
While love has no legal merit in our court system and cannot be used to overturn discriminatory state laws, public discourse needs to head in the direction that regardless of whatever label or labels you choose to ascribe to yourself and/or your partner both love and marriage supersede these notions. I suspect one reason why the support from heterosexual allies for legalizing same-sex marriages has dramatically increased over the last few years can be attributed to increased media and social awareness demonstrating that same sex relationships are really no different than opposite sex relationships. Love and marriage is much more than just sex, which is why I prefer the term “marriage equality” over "gay marriage" or "same-sex marriage" since I firmly believe sex, gender, or sexual orientation should not play a factor. Love is love. Let’s stop placing labels on it.