LGBT equality must go beyond marriage
March 27, 2013
It is undoubtedly unconstitutional to exclude any couple from the institution of marriage in the 21st century. Any justification for doing so relies on the Bible, an illegitimate basis for interpreting the Constitution, or on some false conception of what marriage and procreation actually are in America today (and possibly a false conception on what marriage and procreation ever were, in the history of humanity). We’re asking ourselves the wrong questions, though, if we think that asserting the unconstitutionality of a same sex marriage ban is the same thing as fighting for a more just, equal, and free world.
Whether you agree with Catharine MacKinnon that a ban on same sex marriage is really just sex discrimination (Rick can’t marry John because Rick is a man; Rick could marry John if Rick was a woman), or that sexual orientation should be a protected class under the Equal Protection Clause in its own right, meaning that the government must have a narrowly tailored compelling interest in distinguishing based on sexual orientation, or that even without being a suspect class, distinguishing couples on the basis of sexual orientation fails even a rational basis test because there is no reasonable justification for the distinction (as Massachusetts’ high court found in Goodridge), DOMA’s unconstitutionality seems obvious. The same Constitution, however, purportedly ended slavery in the 1860s and segregation in the 1950s. But walk through any prison or down any urban block in America and you won’t be convinced those holdings led to racial equality.
The right to marry has been called the civil rights issue of our era, but we should be disturbed by this, and ashamed that in an era of economic inequality rivaling only the booming ‘20s right before the crash, an era when the resources of entire continents are extracted for the enjoyment of a tiny handful of the super rich elsewhere, that the civil rights battle of our time is to gain entry for gay men and lesbians into an institution originally meant to protect wealth, social structure, and male dominance.
As Michael Warner argues in his book The Trouble With Normal, the gay rights movement has lost the transformative vision held by the Stonewall Inn patrons of the late 1960s—drag queens, queers, male prostitutes, and homeless youth who wanted not to assimilate to the oppressive and homophobic mainstream culture but to be left alone by the NYPD—or the ACT UP (AIDS Coalition to Unleash Power) activists of the 1980s, who wanted not compromise, rhetoric, or meaningless reform, but a revolution in the way the government, the healthcare industry, and society in general understood and addressed the AIDS pandemic and its victims.
Queer communities, despised by mainstream culture with their radical tolerance, their embrace of stigma and their rejection of repressive societal norms, have much to teach society. The cultural and sexual revolution embodied by the Stonewall riots, in which gay pride meant refusing to assimilate, refusing to have the right kind of sex with the right kind of people at the right time and in the right place, refusing to marry and have children and move to the suburbs and quiet down, and especially refusing to go to Washington in a suit and ask for permission to do so, has been corporatized and sanitized.
To me, the struggle for gay marriage feels like a cop-out, an admission that this is the best we can or should want. Of course the Supreme Court should strike down DOMA as unconstitutional. But we should not fail to recognize that it is merely a struggle for formal equality for white, wealthy, well-behaved gays and lesbians and not a transformative movement for a better world. When the Supreme Court issues its decision announcing the Constitutional right to marry for all, as I believe it will, we should not celebrate too hard for too long. We should get back, as quickly as possible, to fighting for a fairer, queerer, more tolerant and less well-behaved world.
