I am delighted to be guest-blogging for Concurring Opinions this month. It is an honor to be part of this community! Throughout February, I will be sharing my thoughts on how certain narratives are used in the Law to subjugate various groups based mainly on their gender and sexual identities, and how, in turn, such groups use or can use the law in their pursuit toward equality. My primary focus will be on Family Law, although in some instances I will explore its intersection with evidentiary and criminal law issues as well as with legal theory.
Without further introductions, I would like to begin discussing marriage equality, an issue that seems to intensify every day as courts and legislatures take action on the matter. Throughout the history of the United States, marriage has been a divisive subject. States have used its regulation to sustain patriarchal, racial, religious and heteronormative compliance. At every proposed change to its structure (from the role/rights of a particular spouse to who is actually eligible to reap the legal privileges of marriage), different constituencies have reacted strongly. For example, let’s think back on the reactions to challenges to anti-miscegenation statutes, reforms to treat women as chattel, and marital rape. Undoubtedly, the controversy has always stemmed from the fixation of our legal system on using marriage as a proxy to grant rights and privileges, and, most importantly, as a mechanism to segregate and stratify citizens.
The preferred strategy to challenge this caste system has been to fight for inclusion under the rubric of a conjugal union. However, we should question whether extending the protections and benefits of marriage to more groups is the appropriate solution for attaining a more egalitarian society or just a quick fix that serves some and leaves others behind; or even worse, a strategy that would create such a backlash that would leave a large group of people vulnerable.
The recent gay-marriage controversy in Oklahoma epitomizes this disjunction. On January 14, a federal judge ruled that Oklahoma’s ban on gay marriage is unconstitutional. A couple of days later, Republican lawmaker Mike Turner announced that his party would look into the possibility of abolishing marriage as a way to circumvent the Court’s decision and safeguard the “traditional” notion of marriage.
Proposals to disengage the state from the business of regulating marriage are not new. In fact, I have been one of its most fervent proponents. Yet, there are many reasons for believing in marriage deregulation. I do, because I firmly maintain that true deregulation would be the appropriate solution for attaining a more egalitarian society, as it would result in what Professors Alice Ristroph and Melissa Murray have denominated familial disestablishment (the state recognizing the existence of diverse family arrangements and abstaining from favoring one type of family over others).
Other proponents, like Rep. Turner, advocate deregulating marriage on a “pro-marriage” basis. The ultimate goal of these proposals is to preserve the institution for the heterosexual couple. Turner does not wish to deny or take away from heterosexual couples the privileges that they have been enjoying for so many centuries. Rather, he seeks to preserve the label of “spouse” as one exclusive to heterosexual couples.
What I suspect Turner has in mind is a scheme that does not truly disengage the State from regulating marriage, but that would regulate marriage indirectly through the regulation of the family. Abolishing marriage requires amending a considerable amount of statutes and regulations. For instance, in the federal system alone there are more than a 1,000 laws that use marriage as a proxy in one way or another to grant privileges/rights or impose obligations upon the spouses. If you are not willing to give up those legal benefits but do not wish to have the State granting marriage licenses, there are basically two ways in which it can be done: 1. replacing the marriage proxy with new proxies that resemble the heterosexual couple; or 2. granting benefits to marriages officiated by a particular religious or civil body other than the State.
In any case, that system would not guarantee that gay couples would be denied access to the same benefits that heterosexual couples currently do. If the second option is chosen, gay couples would only have to find a religious or civil body that would celebrate their marriage. On the other hand, if the first option is the preferred one, gay couples would still have access to “marital benefits”.
Even though courts, for the most part, have been avoiding the question of whether gays should be a protected class, they have found that under the rational basis test, treating gays and heterosexuals differently is unconstitutional as it does not further any legitimate governmental interest. Therefore, those new proxies cannot be based on sexuality. They could, however, be based on having kids and being in a committed long-term relationship.
A lot of gay couples fit this bill. Thus, the State would not be able to deny them benefits under that scheme. Yet, that would mean that gay and straight couples without children would not be able to enjoy those privileges. At the same time, it could disincentive some gay couples from marrying since they might not be able to enjoy the traditional benefits of marriage because they do not want children or simply cannot afford them, or because the added social value of being recognized by the State as a “couple” would be completely lost.
A proposal like this would constitutionally leave vulnerable more people than our current scheme. Moreover, this type of reaction unmasks what is really behind the regulation of marriage: the fact that we still adhere to an unequivocal definition of the family as a bureaucratized, monogamous, sexuated married couple with children. The law is a mere tool to channel people into this euroheteropatriarchal behavior.
A perfect example of this channeling function of the law is how the queer movement changed its narrative from embracing diversity and celebrating queerness to the commonplace slogan of we are just like you. This strategy has been highly criticized within the queer community for prioritizing marriage equality over other pressing issues, for advancing an agenda that only benefits a small group of the community (the one that complies with societal norms except for their sexuality), and for channeling people into a heterosexual model of living and experiencing romantic-sexual relationships. Furthermore, it has been condemned inside and outside the queer community for not advocating for legal recognition and access to government support programs for a wide range of relationships, households and families regardless of kinship, conjugal status or citizenship, and for failing to advocate true separation of church and state in matters including regulation and recognition of relationships, households, families, sexual lives and gender choices. Then again, even under the “marriage equality” agenda a lot of people are left vulnerable. Even worse, they are invisibilized.
The only way to truly achieve a more egalitarian society is a complete obliteration of the marital institution. Doing so will force us to re-examine all the laws that make reference to marriage and scrutinize the real purposes for which the laws were supposedly enacted. Furthermore, it would require us to make sure that such purposes are finally followed by granting protections to all types of families/households/relationships. Only then would we be able to recognize the plurality within our society and allow people to live their romantic-sexual lives without the fear of being subjected to a regulatory scheme that ostracizes them or channels them into something that they are not based on inane beliefs about human nature.