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Marriage and the Constitution: A History of Inequality

September 19th, 2011 No comments

This past Friday, I gave the keynote address at Widener University’s Constitution Day event. Because of multiple requests1, I am reproducing that speech below. In sum, it’s instructive to see how the right to marry (and its denial) have been important issues in the struggles of African-Americans and women — not just gays and lesbians — to gain equality. And if you want to think about where the next movements will come from, look at those groups that still confront restrictions on their rights to marry: immigrants and the mentally disabled.

Here’s the entire text of the speech, warts and all:

Let me start with a quote from Justice Kennedy, from a 1996 decision (Romer v. Evans.) He begins his opinion – a landmark for gay rights – with a quote from the infamous 1896 case of Plessy v. Ferguson, where the Court allowed a separate but equal regime to exist. Only one justice dissented.

“One century ago, the first Justice Harlan admonished this Court that HN1the Constitution “neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 537, 559, 41 L. Ed. 256, 16 S. Ct. 1138 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake.”

But is it? How much progress have we made in fulfilling the promise of dignity and equality for all of our citizens?

I want to explore that question through an examination of a particular question:

What does the Constitution have to say about whether same-sex couples have the right to marry? And what does that, in turn, have to do with citizenship? Are gay and lesbian couples not fully citizens if  we can’t marry the person of our choice? And it’s worth asking: How important is this issue, anyway?

But to get there, we’ll have to pan away from that specific issue. We might begin with this question: What exactly do we celebrate about the Constitution on Constitution Day?

We might justly celebrate the structure of government that was set forth, pain-stakingly, in that document: three branches of government, with a carefully calibrated assignment of powers and responsibilities among them. (And shortly thereafter, the Supreme Court’s decision, in Marbury v. Madison, that it had the ultimate power to rule on whether a given law was constitutional.)

There’s also great, aspirational rhetoric in the document. It begins with the short preamble, which speaks for “We the People of the United States,” and then states the grand purposes of the Constitution: “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity….”

And then there was the Bill of Rights, shipped off to the states for ratification shortly after the original document itself. Among the protections afforded by those amendments are the rights to freedom of speech, religion, and assembly, to be free from unreasonable searches and seizures, to confront one’s accusers in a criminal case, to a jury trial in civil cases, to do all 16 dances, and, perhaps most famously – but not exactly accurately – not to be deprived of “life, liberty, or property” . I say not accurately because the Constitution doesn’t echo the Declaration of Independence’s language that all men (note the limitation) have the right to “life, liberty and the pursuit of happiness.” It instead says that the first two (with property now substituted for happiness) can’t be taken away without due process of law

Indeed, it’s that same Declaration of Independence – not the original US Constitution – that contains the phrase “all men are created equal.” It’s easier to put grandiose statements into a declaration when you’re writing a manifesto designed to free you from an oppressor (King George) than it is to put them into a constitution where you’re trying to hammer out the metal of governance. Remember that the drafters of the Constitution were so intent on making the thing work – the nuts and bolts of government, which also famously included the separation of powers between the federal and state governments – that the Bill of Rights wasn’t even included in the original document.

And those very same problems of compromise and the difficulties of drafting a working document surely helped to contribute to a problem with the Constitution that, even today, places a heavy hand on many of the groups that make up “the governed.” Because if we focus on the rights of groups that are disenfranchised or marginalized, the Constitution comes up short.

As is famously known, when the Constitution was ratified its protections for individual rights and freedoms, embedded in the Bill of Rights, didn’t extend to women – who weren’t even mentioned – or to African-Americans, who (if they were slaves), weren’t even considered people. And there was, more generally, no guarantee of equality. It secured the blessings of liberty for white men only.

So after the Civil War, the Constitution was amended to provide, among other things, a guarantee under the 14th Amendment of “equal protection under the laws.” This has turned out to be one of the most important tools in the battle for equality, as might be imagined by its very language. But it got off to sort of a slow, lurching start.

Let’s start not with the freed slaves, but with women. They couldn’t vote – and this disability continued until 1920, when the XIXth amendment was ratified. The 14th Amendment changed nothing for them.

And that was by no means the only area in which they suffered inequality. Under state laws, they didn’t exist as individuals once they married. Their legal existences were swallowed whole by marriage, with the husband gaining the right to manage what had been their property, to bring lawsuits in their wives names, and to make binding decisions for them. Women had no right to contract, either. This disability was a basis for the Supreme Court’s decision in Bradwell, an 1873 case where the Court found no constitutional problem in the fact that the State of Illinois denied to admit to the bar a woman who was otherwise qualified to practice. And in case anyone doubts that the Court’s decision was based on a notion of women that supports this inequality, consider this statement from Justice Bradley’s concurring opinion:

It is true that many women are unmarried…but these are exceptions to the general rule. The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”

These laws disappeared throughout the latter part of the nineteenth century, but no one would say that women’s rights were secured by these moves. Divorce laws often favored men [adultery example], and, until a generation ago, men were still legally able to rape their spouses. Even today, certain rules and practices treat sexual assault within a marriage quite differently than they treat the same conduct by strangers (or even cohabitators). Since social practices are informed by legal rules, it’s not surprising that women’s inequality extended into those realms as well.

How was all this allowed to happen? Because, it’s only been since the early 1970s that the Supreme Court even started to apply the guarantee of equal protection to women in a systematic way that subjected laws based on gender to a high level of scrutiny. In fact, in a recent statement, Justice Scalia opined that, were we to start over, he wouldn’t apply the EP clause of the 14th Amendmen to women. The clause, he said, was only meant to apply to freed blacks. (Needless to say, there’s a strong voice on the other side.)

As for African-Americans, there’s a sad abundance of points to make about how the Constitution’s promises were for them hollow until quite recently. Until the Civil War, of course, slaves had no rights of any kind. Remember that there wasn’t any controversy over the fact that slaves weren’t considered rights-holders, citizens, or people. They couldn’t vote, and could marry only ceremonially AND only at the sufferance of their owners, who permitted such unions only when it suited their interest. And if it later suited their interest to break up the family, well that’s just what they did.

So what effect did the Civil War amendments, and in particular, the guarantee of equal protection, have on them?

As we now know, not nearly enough. To get back to marriage: While the freed blacks could now marry each other, they were, increasingly prohibited from marrying whites. And this went on for more than a century after the end of the Civil War, in spite of the enactment and ratification of the post-Civil War amendments. This could be defended under a sterile view of equality that said: Well, whites can marry whites and blacks can marry blacks – everyone’s equal! It wasn’t until 1967 that the S CT finally stated that state bans on interracial marriage were actually anchored in a notion of what the Court directly called “white supremacy.” In other words, a deeper understanding of what equality requires was needed.

In other contexts, too, the equal protection clause rang hollow. Consider that in 1896  the Supreme Court ruled, in the Plessy case, that “separate but equal” regime was constitutionally permissible. It was only Harlan who was able to see through this tissue and state what should have been in plain sight: that separation combined with a long history of discrimination and a theory of racial hierarchy can never be equal.

There are no castes here in the United States, said Harlan. But his statement was wish, not reality. And the challenges of equality remain, even though the Court has said that any distinctions in law that are based on race are presumptively invalid. We’ve gotten rid of Jim Crow laws, poll taxes, and other forms of discrimination that undermined the promise of the 14th amendment, but it’s impossible to argue that the achievement of formal equality has led to anything approaching social or economic parity, as any set of demographic data quickly reveals.

So what does any of this oversimplified history lesson have to do with LGBT rights, and with citizenship, or marriage equality?

Plenty.

Because the denial of equality is, to the extent of that denial, a denial of citizenship.

Thus, when women can’t vote and can’t marry without losing their legal identity, it’s inaccurate to call them citizens in the full sense of that term. When African-Americans are compelled, by law, to attend schools that everyone knew were inferior, were disenfranchised by laws that were aimed at them in fact, and are limited as to their marriage partners, they too are relegated to a lesser citizenship – almost 150 years after the end of slavery. Because citizenship, expansively understood, is more than a nation’s willingness to recognize you in that capacity for a census. Citizenship demands the right to participate, fully and on equal terms, in the political life of a nation. Access to education, the right to vote, and – most broadly – full legal equality are needed for those purposes.

So it is with gays, lesbians, and transgendered Americans. And it happens that, for a variety of reasons that cohere in a way that few might have expected even thirty years ago, marriage has become – along with the about-to-be-history of the exclusion of gays and lesbians from the military – the focal point of the struggle for the full citizenship and equality of LGBT people. How has this happened? And why?

First, some background. It wasn’t until a little over a century ago that people were even recognized as homosexual. At least in the U.S., homosexuality was understood as a sexual act, not as part of a broader identity – let alone an identity that one might choose. This older view is not without adherents, even today. Among them are the most vocal of opponents to full equality, including Justice Scalia, whose inability to understand the importance of equality for the LGBT community seems deeply rooted in his view that homosexuality is behavior – and therefore controllable, and therefore not entitled to the kind of heightened protection we afford historically disadvantaged minorities.

An infamous, almost-funny example of this was his series of questions during oral argument in the Lawrence v. Texas case. There, he made clear his view that the state could ban behavior that it found immoral, even if that behavior had an expressive component. He compared homosexual acts, mischievously, to flagpole-sitting, and asked whether a state could legally bar people from sitting on flagpoles, even if the sitter regarded the conduct as expressive.

Only a view that sees sexual behavior as disassociated from identity could find any such comparison even plausible. And then the state can regulate behavior, even when it occurs in the home. So Scalia is definitely “old school” when it comes LGBT rights – if there are not LGBT people, as such, then we also disappear as people with claims to rights and the dignity that legal equality confers.

Of course, Scalia’s view is in full retreat today. Vast majorities of people, at least in most Western countries, understand members of the LGBT community as rights-claiming people. And across a broad spectrum of issues, they support equality.

Thus, even though Congress has repeatedly refused to pass the Employment Non-Discrimination Act, huge majorities of Americans think it’s wrong to fire someone because of their sexual orientation (less so, unfortunately, because of their gender identity). Don’t Ask, Don’t Tell, which officially ends its life next week, was repealed because the policy was opposed by more than 2/3 of Americans, who saw no reason why gays and lesbians – but again, not transgendered people – should not be able to serve. Majorities (although not majorities in every part of the country!) mostly see gays and lesbians as neighbors, friends, and even parents.

And recently, a majority of Americans, for the first time, told pollsters that they didn’t find homosexuality itself immoral. This is hugely important, because that view drives much of the anti-gay legal and social culture. If what gays and lesbians do sexually is considered immoral, then it’s easier to justify laws that effectively drive them underground. But once that view changes, progress will accelerate.

So what about marriage equality? Why is this the laggard issue? And why is it of importance at all? Until what I’ll refer to as the ‘equality explosion’ of the past decade or so, many in the LGBT community scoffed at any idea that what we should be aspiring to is marriage.

Marriage! Of all things. Feminists, straight and lesbian alike, made the obvious point that marriage had long been associated with the subordination of women, and was a convenient way for the government to use the social,, non-legal view of marriage as a way to enforce compliance with expected gender roles and identities. Why should gays and lesbians be interested in that?

And the answer comes back to citizenship, at least for me. One we recognize that gay and lesbian people exist, and that they can establish loving relationships and families just as their opposite-sex counterparts can, it becomes an embarrassment to equality and to reason for the state to exclude them from the one institution that recognizes and supports such relationships.

This also answers, in its way, the charge that the gay rights movement is too different from the civil rights movement and from the women’s movement for any useful comparisons to be drawn. It is fair to say that general comparisons aren’t very helpful, and risk missing the history and eliding the distinctions between the various groups. Yet by homing in on how legal barriers have been used in a particular context – such as marriage – to enforce second-class citizenship, we can indeed see parallels.

Blacks were first prohibited from marrying, in a way that was part and parcel of their status as non-persons. Then they were prohibited, in many states, from marrying whites in an effort to use law to enforce the social (and, by the way, the perceived biological) distinctions between the races.

And the obliteration of legal personhood that accompanied women into the marital relation both created and socially reinforced their subordinate status; a status that, again, is also demonstrated by their greatest civil rights struggle: to gain the vote.

Let’s now – finally! – get to the struggle of gay and lesbian couples to marry. (Bisexuals will have this problem some of the time; as for TG people, the problem is somewhat different and I’ll talk about it in a few minutes.)

What is the argument for allowing same-sex couples to marry? It’s the simplest possible application of idea of equal protection:

If the right to marry is fundamental, as the Supreme Court says that it is, then fencing out gay and lesbian couples from marriage is a clear deprivation of equality. What are the possible responses to this argument, and are they compelling?

The first is what I might call the Scalia argument. It’s what I expect him to say if and when the case reaches the Supreme Court. It feeds off the premise that there’s no such thing, really, as a gay or lesbian “person” as such, and then argues that there’s really no equal protection problem here at all. Men can marry women; women can marry men. Everyone can marry someone.

Yes, this would mean that a gay man could marry a woman – heterosexual or lesbian – and that a lesbian could marry any man of her choice.  But that’s not a problem under this view, because at bottom there’s no integrated “person” whose rights are infringed.

This argument doesn’t have many adherents, and I doubt that even Scalia would state it this baldly – it’s more that the view would underpin his decision. As for what’s wrong with it, it’s enough to say that it badly misunderstands the nature of equality. As the CA S Ct said in the In Re Marriage Cases, denying same-sex couples the right to marry someone they might actually be attracted to is the most basic denial of equality.

The next argument is that it’s an error to think of this as an equality issue, because same-sex couples and opposite-sex couples aren’t similarly situated when it comes to marriage. There are many variants of this argument, but the best-known is the natural law argument, which goes like this:

Men and women bring something different, and complementary, to marriage. Marriage, and procreative sex, brings them together for the unique purpose of conceiving children. Since no other coupling can achieve that end, no other coupling can be marriage.

The problem with this argument – apart from its reductive simplicity – is that it can’t bridge the gulf between describing one view of the marital relationship and prescribing what would be best for society. Why should marriage laws be constructed around this kind of abstraction rather than as a way to both structure and dignify actual lives? There are complex questions (which I’ll get to right after this!) that can’t be defined away based on one idiosyncratic view of what marriage just “is” or just “must be.”

It’s easy enough to pick off the low-hanging fruit, the arguments that have little traction. But there are others that might be raised in opposition to the basic contention that LGBT couples deserve equal protection under the marriage laws.

As the Prop 8 trial dramatically demonstrated, though, these are ultimately non-starters as well.

The first is that the state has an interest in supporting the institution that encourages couples to stick together for the children they might create through accidental procreation. This argument was accepted by a couple of state supreme courts a few years ago, but it hasn’t escaped the criticism it deserves. The state can encourage that, but it remains to be answered how it can justify fencing out others – like non-procreating senior citizens, not just gays. Indeed, asking the question about seniors shows how little marriage really is about this “accidental procreation” thing.

The next is that marriage provides an ideal setting for child-rearing, and that kids do best in a household headed by a mother and a father. Except that the social science evidence thus far suggests to the contrary (with even some faint suggestion that lesbians might make the best parents of all, a finding that would surely cause some discomfort among the oppositionists if it turns out to be supported by further evidence).

The last is the trickiest, because it’s the hardest to counter. Marriage is in trouble (not gays’ or lesbians’ fault, they admit) and we don’t want to do anything to counter the idea that kids need a mother and a father. If we do, over time people will stop marrying. The institution will lose its unique meaning and historical place, and people won’t regard it in the same way – and will flee the institution in droves.

I heard this point made, expressly, by one of the litigants in the case that was decided by the Iowa Supreme Court.

This argument is wholly unsupported and speculative, and if anything seems contradicted by early evidence from states that do allow same-sex marriages: MA, for example, is among the nation’s leaders in marriage rates and has the lowest divorce rates (or close to them). And against such a possible, long-term outcome, one must weigh the immediate and undeniable harm to the couples being affected right now.

So if these arguments aren’t any good, why isn’t the struggle over already? Well, there’s of course religion.

But there’s another reason: same-sex relationships are still seen, by many, as a challenge to gender norms – even by many of those who favor equality in other legal realms. That these norms have been shaken up enough to make the conversation even possible is a tribute to the work of feminists – female and male alike.

Of course, the ways that the marriage rights of A-As, women and gays and lesbians have been denied are different, reflecting the fears and assumptions that the majority – or at least the voting majority – harbored of those groups.

Yet I do think that, while one needs to take clear and careful account of differences between the ways that those in what one famous S Ct footnote called “discrete and insular minorities” have been treated, and how they’ve responded to that treatment, in the broader way that the arc of history bends toward justice, our struggles are, in important ways, interconnected.

While the metaphor of a quilt of separate squares has sometimes been used to make this point, I think instead of an expansive, single cloth interwoven with many threads, becoming stronger and tighter as more threads are woven in. Looking closely, we can discern the various colors and thread textures that make up the cloth’s entirety, but sometimes we can just admire the cloth’s whole, integrated structure.

And we must always be on the lookout for the threads we’ve not noticed before, or that we’ve pretended weren’t there. Because the cloth needs constant strengthening and refereshing.

And the work will never be complete. To stick with marriage, consider two additional out groups: transgendered people and immigrants. With the TG community, it just happens that marriage equality solves their problem because it eliminates the embarrassing difficulty that courts have had in trying to figure out whether marriages involving at least one TG person are legal. Often ignoring even reassignment surgery and new birth certificates, many courts have simply declared that chromosomal sex rules. The approach varies from state to state and court to court, leaving TG people in a hopeless situation when someone challenges the validity of their marriage.

In other words, when given the chance, many courts will unravel the couple’s life together, and make them legal strangers to each other – even after the death of one of the members, where a family member comes in to challenge the validity of the marriage.

(For most TG people, of course, marriage is not the biggest worry. The entire administrative state is set up in a way that makes all kinds of things – drivers licenses, transit passes, passports a logistical nightmare and a daily assault. Mention Aussie passport and U.S. “pick your gender” moves.)

As for immigrants, note that INS will investigate an otherwise legally sanctioned marriage to determine whether a citizen’s marriage to an “alien” is really a “fraud” – and to what other sorts of marriages, I ask rhetorically, is this approach applied?

And the mentally disabled have long faced severe and sometimes insurmountable restrictions on their right to marry.

These examples could be expanded, of course, to make the point that the exclusion or limitation on the right to marry tells us more than we might have expected about how a certain group is regarded – and therefore about their status as full citizens, entitled to state-conferred rights (like marriage) that the majority – including felons –takes for granted.

I want to close with a point that I hope will take us back to that single cloth of many threads. Because that cloth will obviously need the strength of the majority, of the supposed “unsuppressed class.”

And the strength of that thread comes from recognition that these caste-like, hierarchical structure and restrictions– decried by Justice Harlan more than a century ago, has a pernicious effect on everyone, including the dominant class.

We can see that in an obvious way in the interracial marriage cases.

Because the goal of the law was to further white supremacy, it wasn’t often noticed that the effect was to deny full equality to those whites who wanted to cross the gender line to marry. Consider the case that spawned the S Ct’s ruling, Loving v. Virginia. Richard Loving, the white man, was just as much a victim of the anti-miscegenation law as his wife, the A-A Mildred Jeter. They were forced to live apart in order to avoid prosecution. Richard would sneak into his own wife’s house (the couple were legally married in DC but VA not only wouldn’t recognize the marriage, but called their union a crime that could be prosecuted) in Virginia, at night.

But my point is broader than an observation about the effects that denying equality has on a particular person, or couple. In a broader sense, we are all denied citizenship when any one of us is. Because surely one of the benefits of citizenship is the right to interact with other citizens who enjoy the same freedom to fully authentic lives that we all claim at least the legal right to pursue.

Allowing the Constitution to realize its full promise can’t ensure any such thing. Yet the Constitution can be the medium for the furtherance of equality rather than an excuse for its continued denial. On Constitution Day, we do well to remember that, while our Union will never be “perfect,” our job is to work toward that tantalizing goal.

“As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Justice Kennedy, from Lawrence v. Texas.

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