The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part I)

Hello everyone, and thanks Solangel and the other regulars for hosting me here. I thought I would begin with some thoughts on the aftermath of United States v. Windsor, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). June 26, 2013, the day in which the case was decided, will no doubt be one of those days that many will reminiscent about, ask and will be asked “where were you when the decision was published?” As someone who studied is Constitutional Law class when the 1986 Bowers v. Hardwick was still the law, the day Windsor was decided was a truly wonderful day for me. Indeed, this day marked a significant decline in legal homophobia, and we should all celebrate that. But is it the end of marriage-based discrimination?
I’m afraid that the answer to this question is “not yet.” It seems that the campaign for same-sex marriage has been almost too successful, and that the right to marry is rapidly becoming a requirement to do so. Postbulletin.com reports that the Minnesota Mayo Clinic is requiring its LGBT employees to marry their same-sex partners in order to continue their eligibility for health benefits. The previous policy was introduced in order to remedy the discrimination against LGBT employees who could not marry their partners. Now when they can do so, they must, if they wish to continue to be eligible for the benefits. There will even be a deadline for these couples to get married. What a charged idea, a deadline to get married, and one that is created by one of the partners’ employee!
On the face of it, there is nothing wrong with this change: Under this policy, unmarried heterosexual partners of employees are ineligible for health benefits. The update is necessary in order not to create a new form of discrimination, this time against unmarried heterosexual couples. But this is only one way of looking at this policy.
The updated policy which requires same-sex couples to marry in order to keep their health benefits exposes what I call law’s heterophilia, a concept which I have introduced in a recent article. Much has been written about law’s homophobia, past and present. Various forms of discrimination against LGBT individuals have been labeled “homophobic” and in most cases, justly so. But law sports an additional, more insidious prejudice—namely, heterophilia.
Homophobia works “against” LGBTs. Criminalization of sex between men or between women is homophobic. But what are we to make of legal norms that do not work directly “against” gays, but “for” heterosexuals? Such norms do not consciously discriminate against LGBT individuals, but privilege heterosexuals (not all of them, as I explain below). The underlying result is discrimination. These norms are not homophobic in the sense that unlike sodomy laws, they were not designed with the specific aim of persecuting sexual minorities.
I borrow the term “heterophilia” from psychoanalyst David Schwartz, who argued in the early 1990s that in addition to homophobia—a well-explored prejudice which is rooted in devaluation—there can be another form of prejudice against LGBT individuals which is rooted in “philia,” namely in the idealization of heterosexuality. Heterophilia, argued Schwartz, is an “unarticulated belief in a particular sexual ideology,” rather than an objection to an alternative sexual ideology. By the absence of phobia, and in many cases by actual acceptance of LGBT individuals in several respects, heterophiles “immunize their ideological commitments against articulation and scrutiny.”
Now, let’s return to the Mayo Clinic’s revised spousal health benefit policy. Heterophilia idealizes not merely heterosexuality, but heterosexual monogamous relationships in which the spouses are married to each other. Marriage is the quintessential heterophile institution. This is why heterophilia can discriminate not just against LGBTs, but also against heterosexuals who refuse to get married. They too are ineligible for health benefits for their partners, if they are employed by a company who has a similar policy in place.
While the Windsor Court’s ruling is just and humane, it exists within a context, and is subject to interpretation (or misinterpretation and even abuse) within that context. One such misinterpretation is the quick evolution of an equal right to marry for LGBTs into a requirement. Critics of the campaign for same-sex marriage have warned against this consequence. But I believe that the critique was misdirected. The problem is not with the proponents of same-sex marriage, but rather with the general socio-legal culture, which still discriminates on the basis of marital status and, now, happily, does so regardless of one’s sexual orientation.

Part II of this post.

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7 Responses

  1. Brett Bellmore says:

    “But this is only one way of looking at this policy.”

    Albeit by far the most reasonable one. Unless, say, you want to either double Mayo’s health care expenses overnight, or force them to stop extending benefits to married partners

    “The problem is not with the proponents of same-sex marriage, but rather with the general socio-legal culture, which still discriminates on the basis of marital status and, now, happily, does so regardless of one’s sexual orientation.”

    So, the critics of SSM were right, when they claimed that the advocates of SSM weren’t fighting to gain marriage for themselves, but to destroy it for heterosexuals? And completing that task will be the next goal, now that the first step is finished?

    It does sound like you’re confirming everything they were saying about SSM.

  2. Shag from Brookline says:

    Perhaps Brett can inform us on whether divorce laws destroy marriage for heterosexuals rather than blaming the more recent SSM movement.

  3. Jimbino says:

    The new battleground will be over matrimania, the widespread concept that marriage is normal and desirable and that it entitles the married to special gummint benefits.

    Nobody will care to mess with marriage as long as it is confined to a religious ceremony or considered a sacrament, but laws conferring special benefits on marriage need to be abolished, in the interests of fairness to singles.

    It appears that Europe is way ahead of Amerika in this matter, as are many Latin, Asian and African countries, I think, since their tax codes tend to treat every worker as single.

    In the meantime, Amerika will enjoy lots of economic distortions, from the extra expenses incurred by married soldiers (naturally less desirable than single ones) to the extra expenses to employers who need to carry the burden of insuring spouses. As a single I have accepted only non-benefitted contract positions that pay twice the usual hourly wage. It has to be so, else the employer would lose the single skilled worker and ultimately have to compete with him at a disadvantage. But this amounts to a labor-market distortion that ultimately lowers the national welfare.

  4. Joe says:

    “So, the critics of SSM were right, when they claimed that the advocates of SSM weren’t fighting to gain marriage for themselves, but to destroy it for heterosexuals? And completing that task will be the next goal, now that the first step is finished?”

    No. Ms. Windsor, e.g., wishes to protect her own SSM w/o “destroying” the marriages of different sex couples also recognized in NY thanks to legislative change. A subset of the movement wants to change domestic relations as a whole, but that is not the basis of marriage equality movement as a whole.

    Jonathan Rauch in “Gay Marriage” explains how opposition to SSM is actually a major way to destroy marriage, including instead of equal protection, setting up alternatives that in the long run will be used in much greater numbers by different sex couples, given there are so many more of them. Opposition also cheapens the marriage brand, threatening marriage as a whole.

  5. Zvi Triger says:

    When I refer to critics of same-sex marriage, I refer to critics from within the LGBT community, not to homophobic opponents of same-sex marriage, who decry the so-called decline of the traditional marriage, family values, etc. There is a great difference between the two types of opposition to same-sex marriage. The homophobes are against equality of LGBTs, while the LGBT opponents are against the community’s concentration on marriage equality because of two main reasons: First, they view marriage as a patriarchal institution which discriminates against women and against those who choose not to live in a state-sanctioned marriage, but still want the state to respect and protect their committed relationships. Second, some critics from within the community believe that there are more burning issues than marriage equality, such as employment discrimination and homophobic violence, and that resources should be invested in those issues and not in marriage equality which some view as a middle-class and upper-middle class concern. Yet others are concerned with the normalizing effect of marriage and the discriminatory consequences that might occur against those who do not live in monogamous committed relationships, those who are single, and those who live in polyamorous relationships.
    To my understanding, any conspiracy to destroy marriage “from within” by joining it, has never been a motivation of LGBT proponents of same-sex marriage, but rather an allegation of homophobic opponents (warning against the “Gay Agenda” etc.). And frankly, in today’s world, when 50% of married (straight!) couples divorce, I can think of no worse enemy of “traditional marriage” and “family values” than straight folk. Which begs the question – why do LGBTs want to join what seems to be a limping institution in the first place?
    In reality, we humans, gay or straight, are more complex than a mere list of “for” and “against” arguments; law can humiliate and hurt. A law that takes from a widow a considerable part of her inheritance simply because her deceased spouse was a woman and not a man, forcing her to inherit as s stranger and not as a widow, is not only financially discriminating, but also humiliating and disrespectful of her feelings, love and grief. Marriage equality cannot bring back her partner, but can remedy the humiliation that is embedded in defining her love a second-rate one.

  6. Phileo says:

    Unless you want to erase all distinctions made by the law, I’m not sure what is added by the “philia”-ising the law. So, let’s say the criminal law is “lifeophilic,” because it prohibits murder. So? To love life, even with the moderate brotherly love of phileo, is a good thing. The question, then, is not whether a law expresses a preferential “love” for something, but what that preference is.

    I don’t think most same sex marriage advocates are against heterosexual marriage or heterosexual people, or at least I hope that isn’t the case. Why can’t the law be both “heterophilic” and “homophilic?” Why can’t it just be “anthrophilic?”

  7. PrometheeFeu says:

    “Heterophilia idealizes not merely heterosexuality, but heterosexual monogamous relationships in which the spouses are married to each other.”

    I’m not sure where monogamy comes in. You can be married without being monogamous. You can also marry at an extremely low cost. You are free to treat your marriage as nothing more than the commingling of assets between two adults. In that context, I’m not sure I see the problem.