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Yesterday, Andrew Sullivan wrote that he believed Walker may have overreached in his decision legalizing equal marriage when he stated:

"the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."

Sullivan’s argument that this was an overreach is as follows:  

"I'm a strong believer that men and women are deeply different.... [but] such differences are too profound to be somehow weakened by a tiny proportion of the population being included in an institution no longer designed to perpetuate men's control over women."

http://andrewsullivan.theatlantic.co...

I have heard others—even feminists--worry about the fact that Walker supposedly dismisses the idea of gender differences by saying that this idea is an "artifact," when it is in fact an idea very much alive within many sectors of society.  But this interpretation of Walker’s argument misses the point.

Walker’s argument does not address gender differences or the lack thereof; it is instead an argument about whether government and the law can mandate gender roles.  In short, it is an argument that upholds the rights of all individuals and the belief in equal opportunity for all, regardless of gender.

Without quibbling over whether "profound" gender differences exist, as a society we have been striving for over one hundred years to overcome most if not all barriers to the legal equality of individuals, regardless of gender. In the 19th century, women's public role was strictly defined--in law--by gender.  They could not sit on juries and were forbidden to be lawyers, among many other things.  Now, women and men are no longer forced (or precluded) by the laws of a secular government to take on roles based upon gender.  We no longer make policy decisions in the public sector based on gender roles.  As a society we have also come to a consensus that it is generally wrong—illegal, if you will—to discriminate within the law against people based upon their gender.
 
As a result of the breakdown of legal barriers to gender discrimination, the government can no longer restrict women or men to roles in society based on a pre-defined idea of gender differences.  Any discriminatory laws that do remain on the books can indeed be seen as "artifacts."

Similarly, the days when marriage was defined by gender roles within the law has  broken down in the course of the 19th  and 20th centuries.  Until well into the 19th century, a married woman lost "personhood" under the law.  Under "female coverture," the law stated that within a marriage (and a family) there was one legal and political person, and that person was the male.  The gradual breakdown of legal female coverture within marriage was in large part a battle to assert that, in accordance with Enlightenment ideals, the basic unit of society was the individual and not the family.

When the battle for women’s suffrage was won, the law finally recognized the Enlightenment ideal within the political sphere.  With women's suffrage, it became settled law that marriage is an institution consisting of individual partners who are political and legal equals.

The argument Walker was making thus has nothing to do with whether or not there are gender differences; it is instead an argument over whether or not the government in this country legally has the right to restrict the private lives and careers of individuals based on what it perceives and defines as gender differences.

The attacks on the 14th amendment these days—whether in the guise of attacks on equal marriage or attacks on the rights of citizenship for those born in this country (by making citizenship derive from parents and not the birth of an individual)—show a profound lack of respect for the rights of individuals.  It is this lack of respect—not any argument about gender differences or the lack thereof—that Walker addresses in his decision.  Let’s not get sidetracked here.

Originally posted to NCJan on Fri Aug 06, 2010 at 06:56 AM PDT.

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Comment Preferences

  •  Tip Jar (6+ / 0-)

    "There is nothing to be learned from history anymore. We're in science fiction now." -Allen Ginsberg

    by NCJan on Fri Aug 06, 2010 at 06:56:44 AM PDT

  •  When marriage laws are already gender neutral,... (3+ / 0-)
    Recommended by:
    celdd, NCJan, InAntalya

    ...there is no practical impediment to immediately implimenting marriage equality.

    The rules and laws that exist for "opposite" marriage can be applied wholesale to same sex marriages with a few simple and obvious changes in wording, and without much thought.

    We don't have to come up with a whole new set of rules and tax tables and the like. We just flip the switch and alter a few pronouns and slightly reword a few forms.

    This would not be the case if gender roles were highy encoded into law.

    We would have to merticulously go through thousands of laws and rules reguarding marriage that took decades to come up with, have long discussions and long debates on what the rules will be for each type of marriage. "Opposite" marriage, gay male marriages, and lesbian marriages would all need their own detailed set of laws.

    Better unemployed than imprisoned: Vote Democrat 2010

    by banach tarski paradox on Fri Aug 06, 2010 at 07:23:44 AM PDT

  •  Equality is still an aspirational goal (2+ / 0-)
    Recommended by:
    celdd, AUBoy2007

    and not a reality.

    But differences are not deficiencies and we shouldn't treat male-female differences as inadequacies to be overcome, but as unique values to be respected, understood, and celebrated.

    Full Disclosure: I am not Ben Leming. But I think he's pretty cool.

    by Benintn on Fri Aug 06, 2010 at 07:46:39 AM PDT

    •  Exactly (2+ / 0-)
      Recommended by:
      celdd, Benintn

      And the fact that it is an aspirational goal--and not a radical idea--means that while gender-biased laws remain, they are now rightfully viewed as "artifacts."

    •  Equality is a reality. (2+ / 0-)
      Recommended by:
      NCJan, Benintn

      Legal equality, equal opportunity for all, and marraige equality may be "still aspirational goals."

      the diaries that time put in a safe place

      by InAntalya on Fri Aug 06, 2010 at 08:24:14 AM PDT

      [ Parent ]

      •  But does "equal opportunity" mean the same? (0+ / 0-)

        Or does it mean equal in terms of "directed to the individual"?

        Take the Americans with Disabilities Act (ADA).  Persons with disabilities need special treatment in order to have equal opportunity.

        Take affirmative action.  Racial quotas have helped to undo generations of racism and patriarchy.

        Gender equality is similar - perhaps we may need to give women more opportunity economically in order to give equal opportunity politically.

        Or maybe we need to recognize that there are forms of power that are not economic, and that we must work to empower men relationally and not just reward the "I've got mine screw you" cutthroat capitalism and social Darwinism we've seen from the GOP.

        Full Disclosure: I am not Ben Leming. But I think he's pretty cool.

        by Benintn on Fri Aug 06, 2010 at 08:49:44 AM PDT

        [ Parent ]

        •  Interesting point (1+ / 0-)
          Recommended by:
          InAntalya

          I think the issues you bring up need a lot of discussion and a lot of thinking through. Does equal opportunity mean equality?  I don't know. People are different--some work with their heads, some with their hands; some are good at math, others are good with words.  I think we have to figure out what equality means before we abandon the ideal of equal opportunity--which simply means there should be an equal playing field where everyone can compete.

          In this diary I am speaking to something even more basic and fundamental.  I am saying that a woman who is good at math should not be denied the opportunity to be a mathematician simply because the government decides math is not something that women should do.  This society cannot forbid women from driving--as women in Saudi Arabia are forbidden to do--simply because the government decides that women are by nature not suited for driving.

          In other words, I am speaking of the basic recognition of personhood, of individuality, of the idea that government is forbidden to make laws based on stereotypes, based on roles it assigns to individuals before they even have a chance to discover who they are and what gifts they possess.

  •  It's not that there aren't deep gender... (2+ / 0-)
    Recommended by:
    AUBoy2007, NCJan

    ...differences. It's that none of these differences constitute an molecule of reason for denying equality under the law.

    Don't tell me what you believe. Tell me what you do and I'll tell you what you believe.

    by Meteor Blades on Fri Aug 06, 2010 at 09:52:03 AM PDT

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