Disestablishmentarianism – Last Thoughts on Proposition 8

Posted on November 26th, 2008 by Katherine Franke

I expect this to be my last post on Prop 8 (though I can’t promise it, if the Cal. Supreme Court does something interesting …).

As the marriage equality movement steps back and evaluates where we go from here, here’s what they’d see: Forty six states have barred same-sex marriage either through state constitutional amendments or state statutes. These laws will be very difficult to overturn. So the work left to be done on same-sex marriage, at least in the next ten years or so, will be:

– wait on the California Supreme Court’s ruling on Prop 8;

– see whether New Jersey will take the same road as Connecticut and find that providing same sex couples Civil Unions and not marriage amounts to discrimination on the basis of sexual orientation (it’s separate and unequal);

– get the New York, New Mexico and Rhode Island legislatures to pass laws opening up marriage to same sex couples (they are the only states whose laws do not explicitly condone or prohibit same sex marriage); and

– wait on the Iowa Supreme Court, which is hearing arguments on a same-sex marriage challenge on December 9th.

That’s about it for this generation. Not much work left doable. President Obama is not going to make this his signature civil rights issue. Unfortunately, the same-sex marriage movement has produced advances in a few places, but mostly we’re witnessing vicious and hard-to-undo backlash in most states.

So what is to be done? Well, we could take stock, step back wait out this generation of state legislatures and popular sentiments about this issue. And/or we could evaluate the strategy. If, at the end of the day, marriage in this country has become a more heteronormative institution than when we started the “marriage equality” campaigns, then maybe it’s time to shift course: argue for the disestablishment of marriage as a state-sponsored institution. If it can’t be had on fair terms, states shouldn’t be in the business of providing it.

Are there lessons to learn here from the struggles for racial equality? Remember when the city of Jackson, Mississippi was ordered in the 1960s to desegregate the public pools and in response closed all the pools? The flip side of that bad penny is where we are today: if marriage will only be on offer in most states on terms that are explicitly heteronormative, then we should demand that it be shut down.

Disestablishing marriage – a radical idea, surely. But not a crazy one. It’s what the Europeans have been up to for years by crafting alternatives to marriage. But, tragically enough, it’s a strategy that may be legally impossible in the U.S. thanks to the same-sex marriage litigation. In both the California and Connecticut same-sex marriage cases, the state supreme courts found that the people have a fundamental right to be married. That means that the state must be in the marriage business, and is depriving all people of a constitutional right when they step aside and leave the solemnizing of marriages to religious or other private institutions. This strikes me as a perverse, or at least, complex outcome of the same-sex marriage movement: that it has established a new legal norm of a constitutional right to be married.

It’s one thing to say that if you get into the marriage business you can’t do so on discriminatory terms. It’s quite another to say that the state must be in the marriage business. These two arguments need not entail one another, but they have in California and Connecticut. And in Iowa, where the plaintiffs have made the same argument.

My beef here isn’t with those who sincerely feel a need or desire to be married. Rather, it’s with legal and political strategies that open up one form of freedom or equality at a price that forecloses another.


  1. Although disestablishmentarianism might sound radical, in fact a huge number of ‘people on the street’ quickly agree that the best solution is to get government out of the marriage business. People do not want their relationships regulated. People do not believe that marital status discrimination is in anyone’s best interests. Prop 8 has accelerated and focused the discussion and empowered the movement, Those who want to join the debate should visit http://www.unmarried.org/blog/blog.

  2. The California Supreme Court actually left the door open for the elimination of marriage, in spite of the fact that the LGBT groups argued that the state could NOT eliminate it. I think the groups were dead wrong about that, and I was glad to see at least the possibility of arguing in the future that the state could offer civil unions for all. Here’s what the court said:

    “We have no occasion in this case to determine whether the state
    constitutional right to marry necessarily affords all couples the constitutional right to require the state to designate their official family relationship a “marriage,” or whether, as the Attorney General suggests, the Legislature would not violate a couple’s constitutional right to marry if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — it were to assign a name other than marriage as the official designation of the family relationship for all couples. The current California statutes, of course, do not assign a name other than marriage for all couples, but instead reserve exclusively to opposite-sex couples the traditional designation of
    marriage, and assign a different designation — domestic partnership — to the only official family relationship available to same-sex couples.
    Whether or not the name “marriage,” in the abstract, is considered a core
    element of the state constitutional right to marry…”

  3. […] prize, but rather the affirmative goal of our political and legal projects.  I’ve blogged before about the virtues of disestablishmentarianism when it comes to marriage.  On this view, “marriage equality” is a thin conception of […]

  4. […] Let’s work to disestablish the institution of marriage.  What I wrote almost a year ago about marriage in California applies with equal force today in New […]

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