May 12, 2005
Marriage Wars, Part 3: What’s so Civil about it?
by Jeff Langstraat
So, here’s part three in my exploration of the politics of queers gettin’ hitched. Today, I’m gonna look at the issue of Marriage as a Civil Right. This issue lies at the heart of many debates. Some will go so far as to claim marriage equality is not a civil rights issue. Others choose to sidestep this issue and focus instead on a misguided political “pragmatism.” This diary is for you guys.
So, to those who would argue that marriage is not a civil right, I give you the United States Supreme Court:
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Now, of course, people will argue that the racial classification system involved in Loving is different than the gender or sexuality classifications involved today, and that racism and homophobia are different, making comparisons inapt. They're partially right. I'll deal with the racism and homophobia question below. First, I’m going to deal with this whole marriage as a civil right thing.
People will often argue that same-sex marriage is not a civil right, even if “traditional” marriage is. There’s an unacknowledged problem in their argument. It is this: the right to marry does not lie with the couple, but with the individual. The underlying individual right involved in Loving was the ability to choose whom to marry and what limits the state may impose upon that choice. The Court said you couldn’t use race as a reason for keeping people from marrying. It wasn’t a “right to interracial marriage” that came into being, it was a clarification of the “right to choose one’s marriage partner.” That shift is important. It’s not only more accurate, it also has the potential to change the direction of the discussion.
Now, there are rights and there are rights. The state may set certain limits on both rights and rights. For rights, the burden lies with those being excluded to show that the state has no rational reason for denying the right. The assumption is that if the state can show a reasonable reason for denying the right, it’s a legitimate denial. When it comes to rights the burden is on the state to demonstrate that it has a really, really, really fucking good reason to deny those rights. The assumption here is that the right is so fundamental, so important, that the state cannot deprive citizens of it willy-nilly. The right to marry is a right. As the Court in Loving reiterated, “marriage is one of the basic civil rights of man.” The state needs a really, really, really fucking good reason to set limits on the right to marry the partner of one’s choice. Or, as the Court wrote in Zablocki v. Redhail (link below):
When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.
This approach to marriage has led the Supreme Court to strike down laws banning people who owe child-support from marrying (Zablocki v. Redhail) and laws keeping inmates from marrying (Turner v. Safly). The right to choose one’s to marry, and who one will marry, is quite clearly a fundamental civil right. The question that arises is, Does the gender restriction on who can marry whom serve a legitimate state interest? That’s being argued in the courts and all over the place. I don’t want to delve into it today, because I have other things on my mind. Maybe, if I can remember to, I’ll use it to delve into gender and the marriage wars. My point here is just to discuss the civil rights perspective. The right isn’t to same-sex marriage, but to marry the partner of your choice.
Well, I just don’t believe marriage is a civil right
We’ve all heard it. On one level, these folks just aren’t dealing with jurisprudential reality. Some will cling to the notion anyway. Such misunderstandings of the law surrounding civil rights lead to unclear, untrue, and less than useful political arguments. We might as well know the law if we’re going to argue the law.
But, I want to move in a different direction here, and that’s in what I mentioned above, about race and sexuality. These conversations often get ugly. I hope to stay away from that, but I am gonna dig up some stuff. I’ll start with a bit from the Boston Globe
Sounding like Mississippi's Senator Trent Lott, who once compared homosexuality to addiction, Bishop Gilbert Thompson of Boston's New Covenant Christian Church said, "To say there is such a thing as a gay Christian is saying there's an honest thief."Many black ministers are indignant at any parallels to gay marriage and the African-American civil rights movement. The Rev. Wesley Roberts of Boston's Peoples Baptist Church said, "To equate what is happening now to the civil rights struggle which blacks had to go through would be to belittle what we had gone through as a people."
BIBLE LESSONS THESE CLERGY FORGOT
Derrick Jackson
Boston Globe, February 11, 2004
As I said, I want to try to avoid the “blacks vs. gays” frame. It’s a silly one that does more harm than any descriptive value it may have. However, there is the issue of “comparing” sexuality with race, of “comparing” two different civil rights movements.
I start from the position that race and sexuality are systems of social organization that distribute social resources based on the category one falls into. They are different in their mode of organization (skin color or other related phenotypical characteristics vs. gendered desires and sexual activity) and they operate via different mechanisms. However, they are both systems of domination.
The Reverend Roberts’s objections are problematic. While the mechanisms of institutionalized white supremacy and institutionalized heterosexual supremacy may differ, they also share many features. For instance, homosexuals, as a type of person, were specifically barred from employment by the federal government, and anti-Gay witch-hunts and purges were a prominent feature of the McCarthy era. Being gay was enough to get someone a dishonorable discharge (now it’s at least honorable) and thrown in mental hospitals, where psychiatrists used techniques we’d now consider torture to “treat” our “illness.” Laws were passed to keep us from meeting in public, to keep certain public establishments from servicing us, and to ban us from sending anything queer through the mail. The police controlled our communities via blackmail, harassment, and brutality. Our government, and much of our society (including folks like the good Reverend Roberts) blamed us while we died, or simply ignored us. The reason I list these is not to engage in some kind of “victimization Olympics.” That’s a silly game that leaves everyone angry and solves nothing.
However, when people like the Reverend Roberts make such statements, the implicit claims are: 1) Our suffering is the standard by which others should be measured; 2) Queer suffering does not rise to the level of our suffering; 3) Queer people are therefore ineligible to make any claims for civil rights. This approach sets up the good Reverend as the arbiter of how much suffering is enough, of how much oppression is acceptable. I think it’s also a pretty safe bet that the good Reverend’s reaction is, in large part, due to which group is making civil rights claims.
The larger problem arising here is that of single-identity politics. That’s what sets up the “black vs. gay” dichotomy. It’s a silly dichotomy, and a destructive one, if for no other reason than it forces upon queers of color illegitimate and unnecessary questions of “With which community does your loyalty lie?” It also takes one’s own suffering as the only kind that matters. It makes one’s oppression the standard by which others are measured (and, yes, white gay folks do this…more on that below). It makes invisible the ways that each of us exists in social locations of both penalty and privilege.
Suffering provides no inherent insights. Just as many upper-class white gay men are far too comfortable with, and oblivious to, the unearned privileges their “white” and “male” status gives them, many heterosexuals of color are unaware of the ways their “heterosexual” status places them in the superordinate position. Additionally, the fact that upper-class white gay folks tend to be the only ones we see also clouds the fact that homosexuals, rather than existing as a financial elite, suffer a wage penalty for their sexual orientation. A recognition such things would, I hope, force folks to ask what false impressions they may harbor about other groups as well as how the actions they take contribute to the oppression of others. This can only come from serious reflection…and study. While the histories of institutionalize white and heterosexual supremacy may be different, they are both histories that have produced human misery. As I wrote in Race and Multicultural Politics:
A rethinking of culture and race in this interactive and relational form moves us away from essentialized identities that separate and into the possibility of coalition across difference. It requires other lines of solidarity, though. It also requires critical self-reflection and an obligation to listen. The comparative histories of suffering lead us to a realization that we are all, potentially, oppressor and oppressed. We are all, potentially, victim and victimizer. We are all, potentially, camp guard and prisoner.
This is also a call for white queers to engage in such reflection. Stop saying shit like, “Gay is the new Black.” No, black is still black. Although the forms of white supremacy have morphed, it is still deeply ingrained in the structures of our society. Gays are simply a favored target of the moment. Yes, I realize that’s not such a simple simply and the moment has lasted for a while…and it’s tough not getting the feeling it’s becoming more intense. Homophobia and Racism are both different and similar. People on all sides of these debates need to recognize both sides of that. We must be able to distinguish between them while also recognizing that they both destroy lives. That means white queers gotta stop doing racist shit and start resisting institutionalized racism more significantly. Because people of color are part of queer communities, doing anti-racist work means doing queer positive work. For the same reason, doing anti-homophobic work means doing work that supports the destruction of racial domination. Instead of asking how to improve conditions for (white) queers or people of color, you have to improve the conditions for (white) queers and people of color.
So, that went in a lot of directions. Starting with a discussion of choice of marriage partner as a fundamental civil right I swerved over into talking about coalitional politics and a demand for radical reflexivity surrounding systems of domination. I hope the connections and discussion made sense to someone.
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.
Will our hero escape the bizarre connections in his mind to form a coherent essay? Will he be able to recover and stay on one topic? Tune in tomorrow for: Chains of Love……or…….Get me to the Church on time!
Quoth Rocky to Bullwinkle
What the fuck ya got in the goddamned hat, asshole.
Let ‘em rip.
Posted by in Bio-Power, Body, Christian Fundamentalism, Civil Rights, Culture War, Democrats, Domesticity, Gay, Lesbian, Transgender, Gender, Identity Politics, Law, Marriage, Marriage, Politics, Prejudice, Privacy, Queer, Religion, Republicans, Sexual Politics
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