Gender & Sexuality Law Blog

In the several days since the New York Senate brought the marriage equality bill to a vote, and the bill went down 24-38, many of my straight friends have expressed to me how sorry they were:  “I’m so sorry,” “what an injustice,” etc.  It’s as if it were something terribly unfortunate or offensive done to me personally, or to my “people,” but not something that implicated them.

Just to be clear: I’ve never been a big fan of marriage.  I would never have placed it at the top of the list of things the lgbt community should fight for – indeed I don’t think it would appear on my list at all.  But since it’s become the most important civil rights issue advanced by gay legal and legislative rights groups, we’ve accomplished some rather impressive statements by high courts and elected officials alike of the essentially heterosexual nature of the institution.

I’ll take the opportunity to re-state for my straight friends – particularly those who are married – my observations about what it means that the institution of marriage is becoming a more and more hateful institution as a result of the failed legislative and judicial efforts to open it up to same-sex couples.

Here’s what I would like to say to my empathetic heterosexual friends (reiterating some thoughts from an earlier post):

All you sympathetic straight allies: Enough already with finger pointing at religious conservatives or Ruben Diaz. Take the ring off that finger and put some distance between yourself and an institution that the majority of the New York Senate has decided is a restrictive private club.  And:

1. Those heterosexual people who had made plans to marry should boycott legal marriage. What would you think of a white or gentile person who joined a country club at precisely the moment that it had publicly affirmed its racially restrictive or anti-Semitic membership policies? This moment is no different.

2. Maybe it’s too much to ask already married heterosexuals to legally disavow their marriages (get divorced), but I think they should socially disavow the institution by going on a “marriage strike”. By that I mean: refuse the privileges of marriage as a protest. Stop using the terms husband and wife, or Mr. & Mrs. Take off those wedding bands and big ol’ engagement rings that announce your matrimonial status. Maybe even the most committed of you should refuse the economic benefits that come with being married – aren’t they a reward for being heterosexual?  Other suggestions? Jennifer Gerarda Brown and Ian Ayres have modeled this idea in their own work.

3. 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 York:

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.

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.