Today I'm gonna talk a little about gender and sex (the dirty kind...well, if you're married it might not be that dirty; more of an occasional treat). One of the biggest sticking points in these debates is gender: marriage has traditionally been a gendered institution. In addition to that, traditional marriage laws have set this social space apart as the only place where legitimate sex may occur. In a sense, these two things come together because in both cases somebody usually ends up getting fucked.
The reason a question like "Which one is the bride?" would make any sense is because marriage has traditionally been a gendered institution. Those opposed to marriage equality might put it this way: "Marriage
is defined as between a man and a woman. Anything else, by definition, cannot be marriage." That's the argument. It's constructed in different ways. For instance, there's the "Marriage has always been between one man and one woman." As historically inaccurate as that may be, it is true that marriage has historically been a gendered institution. Doesn't mean it has to be. What something has been does not inherently give rise to what it must be.
How traditional is traditional?
"Traditional marriage" advocates are a bit sketchy as to which traditions they wish to uphold. They cling to an ahistorical view of the institution
As an example, we might turn to a traditional practice that some folks might like to ponder. Jesse at Pandagon has some details about some folks who'd like to return to the tradition of women as property, to be transferred from fathers to their new husbands. That's been a tradition for much of human history. Indeed, it continues. Honor killings aren't far behind.
Thankfully, we've attempted to leave some of that baggage behind. From before the founding of the Republic, our society has legally treated marriage as a matter of consent. (See Nancy Cott's Public Vows for a historical look at this.) However, that didn't necessarily mean women fared a lot better. For most of the history of the Republic, wives have been second class citizens. Women as a group did not receive the vote nationally until 1920. Even in states that allowed women to vote, though, the franchise could be revoked upon marriage. From Public Vows:
The movement for women's political rights was flourishing by 1907.... Women could vote in four states, and eight years later when the U.S. Supreme Court reviewed the policy on wives' citizenship, woman suffragists' gains had advanced further. In California, where women got the ballot in 1911, Ethel Mackenzie was prevented from registering because she was married to an Englishman. Mackenzie took the issue to court, contending that it was unconstitutional for Congress to deprive her of her rights as a citizen because of her marriage.
No court sympathized with Mackenzie, not the trial court, nor California's highest court, nor the highest court in the land. The U.S. Supreme Court, unanimously endorsing the 1907 provision [stripping the citizenship of American women married to foreigners], embraced the "ancient principle" of "the identity of husband and wife." Justice Joseph McKenna's opinion conceded that there had been "much relaxation" of the doctrine of marital unity, but explained that it could not be abandoned. A married couple's "intimate relation and unity of interests" made it "of public concern in many instances to merge their identity and give dominance to the husband." (p. 144)
This active gendering of marriage took other forms. Cott also notes that "The shape and spirit of social policy in the United States were fatefully ordained by the Social Security Act's inherent differentiation between the male citizen-husband-provider and the female citizen-mother-dependant" (176). All of this work, and more, constructed marriage as a gendered institution. The state put in place certain responsibilities and rights, and turned them into gendered roles. These were, of course, related to other parts of society. However, a gendered division of labor that separated economic production from household production resulted from the rise of industrial capitalism. The bourgeois nuclear family is far from universal.
One of feminism's greatest victories has been its partial degendering of marriage. Gendered roles as necessary and natural have been attacked and weakened. Most of them have been removed from marriage law. Women have won (after a hell of a long fight) the ability to retain their citizenship and economic resources upon marrying. They have attacked the notion that a marriage license gives unlimited license to their bodies, and have fought for the ability to leave bad and/or abusive marriages. While the household division of labor may still be skewed, along with wages, marriage today is probably more egalitarian (particularly legally) than it has ever been in this nation.
This breaking down of strict gender roles has allowed a space to open for same-sex marriage. While such marriages might be impossible according to our tautological definitionalists from above, a functional approach to marriage leads us to a different conclusion. If a relationship looks like a marriage, acts like a marriage, and functions like a marriage, it's a marriage. The breaking down of many gender-roles within heterosexual relationships has demonstrated that both men and women can pretty much fulfill any of the roles in a relationship (with one exception to be discussed below). If gender is not inherent to a particular marriage role, distinctions based in gender become more suspect.
The one area where gender really matters is in having babies (OK, that's where biological sex matters...I'm using them interchangeably here because I'm reserving "sex" in this piece for stuff like fucking.) Women can have babies and men can't. That is a pretty significant difference. Particularly when we get into the "functions" of marriage. One of them, historically, has been for raising children (there was the whole issue of regulating sex, as well, but that's coming below). If a couple is biologically incapable of making babies, goes the line of reasoning, they shouldn't really be married. This is rarely carried to its logical (if maybe extreme) conclusions (1084.1), particularly in civil law.
It's not couples who can't conceive who are excluded from marriage, it's certain couples who can't conceive. All of these couples use the same methods to bring children into their families: foster parenting, adoption, surrogacy and assistive technologies.
Not tonight honey, I have a headache
Ah, but there is a difference between these couples, and that's the kind of sex they have. Well, the actual things they do might not be so different, but the gender of the people having sex is different, and that is supposed to make the difference. I'm not buying it. That flows from the functional position I described above. These relationships look, act, and function like marriages, particularly because of the breakdown of gender roles. (Nan Hunter has argued that same-sex marriage could further this breakdown.)
That gets us into sex. On May 17 of last year, I was watching the proceedings in Provincetown on television. The reporter was interviewing a male couple who had just married. I thought to myself, "They look familiar.... Wait, I've slept with them!" (I also received a lovely Christmas card from them after I moved out of the region.) Had we done what we did after May 17, instead of several years ago, we would be breaking the Commonwealth's adultery law. This statute (M.G.L., c.272, § 14), upheld by the SJC in 1983 (Commonwealth v. Stowell), provides for a punishment of up to three years in prison, two years in jail, or a $500 fine.
While fornication statutes may still exist, because of Eisenstadt and Lawrence those laws are likely unconstitutional. A stronger case might be made for the constitutionality of adultery laws. After all, the legal terms of a marriage are imposed by the state. In doing so, the state may (and does) require monogamy as a requirement for the acquiring the contract. Adultery is a violation of the contract. For all the benefits accompanying it, married people trade some legal sexual autonomy: the sexual lives of married people are subject to greater regulation than those of single people (I'm not saying this is good or bad...it simply is.)
This is an interesting turn of events. Historically, institutions have attempted to channel sexual activity into marriage, more heavily restricting non-marital (and, since they were really fond of the marriage-procreation link, non-procreational) sex. The second half of the twentieth century has seen that situation turned on its head. These changes in sexual regulation have given all people more freedom (even married people can enjoy a little butt-love thanks to Lawrence). They've also brought in more protections (like getting rid of marital exceptions to rape). Because of the state's role in setting the conditions of the marriage contract, and because of marriage's historical relationship to sex, it remains likely that married people will be subject to more sexual regulation than single people. That is, of course, assuming that we're able to fight off the Theofascisti.
And now, the Recap
Marriage has historically been a way of both gendering society and ordering sexual behavior. The feminist assault on rigid gender roles, along with a transformation of American sexual culture, helped create openings for same-sex couples to make claims for marriage. In an ironic twist for a movement founded on sexual liberation, same-sex marriage advocates are pursuing an institution where their sexual lives face more state regulation.
dKos Marriage Wars: The Series
In our previous episodes:
Part 1: Marriage vs. Civil Unions. A discussion of the marriage vs. civil unions debate, with an underlying emphasis that the contemporary political scene, particularly the anti-Gay industry's dominance within Republican leadership, makes avoiding marriage equality controversies a non-starter.
Part 2: Finessing the Fags. Starting from the point that marriage equality politics are here to stay, I try to lay out an approach for Democrats that allows them to start shaping the debate in ways that don't fuck over gays and might eventually fuck over Republicans.
Part 3: What's so Civil about it? Looks at marriage equality's legal status as a civil right. Includes a discussion of the place of this movement within civil rights movements historically and the propriety of comparisons.
Part 4: Get me to the Church on time! A discussion of the social history of marriage, particularly the relationship between religious and civil control. Also includes a brief attempt to deal with the "God in the Public Sphere" problem.
Part 5: What's Love got to do with it? A look at how the legal obligations involved in civil marriage help to create more dense social networks, giving marriage a prominent role in maintaining social stability.
Tune in Monday for our exciting series finale, Has it really been a year?......or......HAPPY ANNIVERSARY