There's been a
lot of discussion here at Kos' place over yesterday's Goodridge ruling from the Massachusetts Supreme Judicial Court. (
Here is the main page entry and discussion. Go
here,
here,
here,
here,
here,
here,
here,
here,
here,
here,
here,
here, and
here for individual diary entries.) Large parts of this discussion have focused on the strategic impact of the case. I have to say, it's more than a little frustrating to hear straight "supporters" say things like, "can't this take a back seat to
important things?" Do y'all realize how insulting and condescending that is? Additionally, it's not like the lawyers could predict when the decision would come down. The case was originally filed in 2001. It's part of a strategy that's been used for over 30 years now (the first suit challenging gender-exclusive marriage laws was filed in Minnesota in 1971--
Baker v. Nelson. The folks bringing such suits don't have control over the courts they bring them in. Don't blame
GLAD (the organization doing the legal work here) for the timing of the decision! I've put up a few diary entries dealing with the strategic/tactical issues before (
here,
here,
here, and
here) and I reserve the right to do so in the future. The main point I've been trying to make in those posts is that it isn't going to be us queers pushing the issue next year--it's going to be the Right. We can either cede the territory or go after them. If we put them on the defensive, we have the opportunity to define the terms and the debate. If we follow the advice of cowards who want us queers to shut up and hide, we allow the Rs to dictate terms, and we end up on the defensive. There isn't a question as to whether this will be a campaign issue. The question is how it will play out. No amount of "supportive liberals" trying to push it out of the spotlight is gonna work. It's there already.
The point of this post, though, is not to deal with these strategic issue. My point, instead, is to challenge the folks who say--on philosophical, not strategic grounds--that gay folks should settle for civil unions instead of full marriage; who insist on creating a "separate but equal" institution for our families. You may disagree with me, you may get angry with me, but my position is that such arguments are indicative of bias against gay folks and gay families. Even though you may try to deny it, deep down y'all think you're better than us.
To those of you who are claiming that
the purpose of marriage is the production of children, and that marriage should be limited to opposite-sex couples because they alone can "naturally" have children, the SJC has an answer for you:
The judge in the Superior Court endorsed the first rationale, holding that "the state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation." This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. See Franklin v. Franklin, 154 Mass. 515, 516 (1891) ("The consummation of a marriage by coition is not necessary to its validity"). [FN22] People who cannot stir from their deathbed may marry. See G.L. c. 207, § 28A. While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage. [FN23]
The Court is failing to do what most advocates of the "procreation" position do--they are failing to conflate heterosexual sex with procreative sex. This failure is a positive. Many people, in making this argument, conflate homo-sex with non-procreative and hetero-sex with procreative. While it may be true that homo-sex is non-procreative, it ain't true that non-procreative sex is homo. There are plenty of things straight folks do that ain't gonna lead to babies. Beyond that, there are plenty of straight people who are unable to make babies when they engage in sexual behavior that would result in babies for others. If the advocates of marriage-as-procreation were consistent in their arguments, they would be arguing for fertility tests as a condition for marriage. After all, they say, because gay people can't have babies via sex within their relationship, they're not fulfilling the purpose of marriage. If these advocates were truly concerned with the purpose of marriage, why would they let any people who can't procreate marry? After all, people who are infertile can't fulfill this purpose. They should be granted no marriage license. Procreation advocates are not consistent on this. It's not about procreative vs. non-procreative sexuality; it's about heterosexuality vs. homosexuality. Again, the SJC:
If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as "the source of a fundamental right to marry," post at (Cordy, J., dissenting), overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.
The "marriage is procreation" argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage. Like "Amendment 2" to the Constitution of Colorado, which effectively denied homosexual persons equality under the law and full access to the political process, the marriage restriction impermissibly "identifies persons by a single trait and then denies them protection across the board." Romer v. Evans, 517 U.S. 620, 633 (1996). In so doing, the State's action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect. [FN25]
The Court nails it: the purpose of the procreation advocates is to keep marriage exclusively heterosexual. Not because of procreation, but because of their opinion that heterosexuality is superior to homosexuality.
According to the SJC the procreation argument shades imperceptibly into its [the Commonwealth's] second [argument]: that confining marriage to opposite-sex couples ensures that children are raised in the "optimal" setting. Here, the Court and I go in two different directions. Their basic argument on this issue is that denying same-sex couples marriage rights creates less than optimal conditions for their children:
Given the wide range of public benefits reserved only for married couples, we do not credit the department's contention that the absence of access to civil marriage amounts to little more than an inconvenience to same-sex couples and their children. Excluding same-sex couples from civil marriage will not make children of opposite-sex marriages more secure, but it does prevent children of same-sex couples from enjoying the immeasurable advantages that flow from the assurance of "a stable family structure in which children will be reared, educated, and socialized."
Justice Greaney's concurrence is even better:
As recognized in the court's opinion, and demonstrated by the record in this case, however, the State's refusal to accord legal recognition to unions of same-sex couples has had the effect of creating a system in which children of same-sex couples are unable to partake of legal protections and social benefits taken for granted by children in families whose parents are of the opposite sex. The continued maintenance of this castelike system is irreconcilable with, indeed, totally repugnant to, the State's strong interest in the welfare of all children and its primary focus, in the context of family law where children are concerned, on "the best interests of the child."
My argument is slightly different. In saying that same-sex households are "less than optimal" for the raising of children, opponents of our families are passing judgement on us. Again, they're saying that their relationships are superior to ours. The usual argument is that children need to receive proper gender socialization and that they can only do this in a mixed-sex household. Well, that's an opinion, but it's certainly not sustained by any empirical evidence. According to an American Psychological Association summary of the research on children of gay and lesbian parents has found no difference in sexual and gender identity and traits between the children of gay parents and straight parents. Indeed, the APA writes:
In summary, there is no evidence to suggest that lesbians and gay men are unfit to be parents or that psychosocial development among children of gay men or lesbians is compromised in any respect relative to that among offspring of heterosexual parents. Not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect relative to children of heterosexual parents. Indeed, the evidence to date suggests that home environments provided by gay and lesbian parents are as likely as those provided by heterosexual parents to support and enable children's psychosocial growth.
In other words, we queers are no worse--or better--at parenting than our straight counterparts. Again, people who make arguments against gay parenting, and marriage, are not doing so on the basis of any social reality; they are arguing from their own biases against gay folks.
Justice Greaney's conclusion is absolutely wonderful:
I am hopeful that our decision will be accepted by those thoughtful citizens who believe that same-sex unions should not be approved by the State. I am not referring here to acceptance in the sense of grudging acknowledgment of the court's authority to adjudicate the matter. My hope is more liberating. The plaintiffs are members of our community, our neighbors, our coworkers, our friends. As pointed out by the court, their professions include investment advisor, computer engineer, teacher, therapist, and lawyer. The plaintiffs volunteer in our schools, worship beside us in our religious houses, and have children who play with our children, to mention just a few ordinary daily contacts. We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth. Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do. The union of two people contemplated by G.L. c. 207 "is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Because of the terms of art. 1, the plaintiffs will no longer be excluded from that association. [FN6]
It's my hope, too. However, it will require that folks who are opposed to us queers getting married--even folks on these boards--be willing to look at themselves and their rationale. It's gonna require them to give up their deep-seated, unacknowledged feelings of superiority to us. Hell, it's going to require folks to acknowledge that they have such feelings, which can be a difficult process