26 October 2006

Greg Asks....

So the New Jersey supreme court decided the following yesterday:
  1. The equal protection clause of the New Jersey Constitution affords same-sex couples the same rights to the benefits and priveleges of marriage [and, I would add, duties and responsibilities] as opposite-sex couples.
  2. The question of what to call this, i.e. 'marriage' or something else, should be left up to the 'democratic process', i.e. the legislature.
In addition,
  • they found that the state had no genuine purpose in reserving marriage for heterosexuals.
  • They refused to call marriage a fundamental right, but ruled that the unequal distribution of rights 'can no longer be tolerated' under the New Jersey Constitution.
Greg says he's 'a tad conflicted'.

Of course, the NJ SC is more than a tad conflicted also, since they want to uphold equal rights for gay and lesbian citizens, yet still keep the door opened (or is that shut, the metaphor gets squishy here) for the NJ legislature to deny gay and lesbian citizens the right to marriage.

And the American public is rather conflicted as well. Most recent polls show that a small majority opposes 'gay marriage', while a majority supports equal rights for gays and lesbians.

I've written a couple of articles and given a few talks (some of them were job talks, and I never seemed to get the job - go figure!) that try to explain this contradiction through the concept of heteronormativity. They try to say something like the following:

When we think about the power of presumptive heterosexuality as a norm in society, as a norm that structures expectations and privileges, and which shapes institutions and material reality, it starts to become clearer how one could seek to uphold the “traditional” conception of marriage, while believing in the basic rights of all Americans. Heteronormativity operates in such a way as to make all Americans presumptively straight. That presumption of heterosexuality that heteronormativity writes into the world, loosens the tension between support for gay civil rights and opposition to gay marriage. Viewed from within the heteronormative worldview, there is no contradiction between equal rights and the elimination of gay marriage.

Heteronormativity elucidates the claim that gay marriage “threatens” or “undermines the sanctity” of “traditional marriage,” since what gay marriage does is challenge the very heteronormativity of straight marriage. To acknowledge gay marriages would be to deny the fundamental privilege of heterosexuality, of which marriage and the family are supposed to be the ultimate expression.

Understood through the power of heteronormativity, it thus makes a certain kind of sense to say that one can be against gay marriage and not be disrespectful of lesbians and gays.

Now, what does all this mean politically? For me, it means a resistance to heteronormativity. At one point in time, when 'gay marriage' was an internal debate within radical democratic, queer, and (mainly) lesbian and gay political movements, then staunch opposition to heteronormativy actually meant an opposition to the notion that 'gay marriage' would be a panacea (since making gay marriage legal just heightens the illegitimacy of all other non-marital sexual relations). In an important sense, however, that time has passed. Today, when things like the FMA are floating around out there, when just about every state in the union has got themselves a DOMA law, and, most importantly, when the real possibility of legalised same-sex unions is on the horizon in some places and reality in one, then the challenge to heteronormativy requires the demand for legalised same-sex marriages.

I have a whole other argument for why 'civil unions' are the perfect analogue for Jim Crow (even if they are also an obvious and significant advance in civil rights for many lesbian and gay peopole); they are the very heart of 'separate but equal' institutions. But you're already sick of me by now (if you even got this far), so I'll leave that for another day.

UPDATE1: Be sure to read 'overeducted lawyer's thoughts in the comments. Point no. 3 is particulary significant, and I love the idea contained in point no. 4.
UPDATE2: The little blogroll thingy hadn't updated, or I would have noticed that Dan was already talking about this with his usual articulate eloquence.


overeducated lawyer said...

At the outset, let me say I agree with Sam that civil unions are essentially a separate but equal solution which continues to reinforce and recreate the "otherness" of non-heterosexual couples, and should not be the ultimate goal. But the NJ decision is still important in a number of respects.

(1) You probably read that it was a 4-3 decision, and assumed that 3 justices were against even civil unions. But really, the 3 dissenting justices wanted to bring gay and lesbian couples within the definition of marriage. That means that the court was unanimous that existing law was not consistent with equal protection, a somewhat momentous development.

(2) People today read about Brown v. Board of Education as this momentous decision that came out of nowhere and ended segregation. What they don't realize was that it was the culmination of decades of careful and dedicated legal work in case after case by lawyers like Thurgood Marshall and Charles Hamilton Houston before him, beginning in the early 1930s. Social change is hard to force. Not that the ultimate goal is not right, or shouldn't be fought for, but in 20 years, the judges deciding that civil unions are not enough will be the ones who are in high school or college now and whose gay friends will have been in civil unions for as long as they remember.

(3) The New Jersey legislature may go ahead with marriages rather than civil unions, and if it does, this will be far more important than any court decision. Polling suggests that the outcome has popular support in NJ and democratic action is always more effective than court action. Legal victories are never an effective substitute for actual organization and grass roots action. (See, e.g., the Hollow Hope, documenting how rights realized through courts without simultaneous and sustained grass roots action exist in name only).

(4) Separate but equal is not as good as actual, in practice equality, but it is better than separate and unequal. And personally, I am not sure that the ultimate goal shouldn't really be, 20 years down the line, changing heterosexual marriages into civil unions under the law rather than the obverse. Marriage should be a religious covenant and should be left to the churches. The state should get out of that business. Civil unions for all.

dan said...

So would you say then, that for your point here, the final decision here hinges on the the outcome in the language as decided by the "democratic process"?

dan said...

Sorry, somehow I missed overeducated lawyer's comment. Love it! Civil Unions for all!

tenaciousmcd said...

Sam, as usual, I'm a bit confused, so let me ask this. Are you opposed to "heteronormativity" as a particular or "normativity" in general?

It seems to me that it is hard to deny that heterosexuality is a "norm" by what we usually mean by that term. By most counts, it is the preference of strong majorities (95%+) in almost all socities, which shouldn't be surprising since it derives from the most natural of all biological functions: procreation. That sounds to me like a pretty textbook "norm," even more so than saying, for example, that the average American male is between 5'6'' and 6'2'' in height. What I presume you're objecting to is the MORAL weight given to people within the norm, although norms need not convey that content, as in the height example (but even there, people naturally tend to assign positive value to something that is essentially non-moral and an accident of birth).

I agree that heterosexuality shouldn't be a title to moral privilege. But at some level, I wonder if you're fighting against nature here, asking people to abandon a hardwired mental heuristic toward "norms" in general, of which this norm seems especially implacable.

Some norms, of course, are necessary and good. The norm of civil discourse as opposed to violence, for example. Or the norm that children should be educated rather than allowed to play video games all day. And, although I know you'd disagree, I'd argue that marriage is itself a valuable social norm, since it creates a far better model of childrearing than single of divided parenthood.

The strongest argument that the gay rights movement has on this issue is that they WANT to be subjected to that norm, meaning that they want to join into a fundamentally moral relationship one that serves non-selfish purposes and that is recognized by society as beneficial to family structure. Gay "liberation" is a tough public sell because it is anti-norm, whereas gay marriage is a better one since it merely seeks a more consistent and less hypocritical norm while imposing salutary restraints on sexual behavior.

What that means politically is that gay advocates are in deep shit if they start attacking "normativity" per se. I'd also argue that, given that heteronormativity is, to some extent, a social fact, gay advocates should probably find a way to work within its broad parameters rather than condemning it as an arbitrary social construction.

BTW, if the three NJ dissenters had their way, it would have been a HUGE bonus for the GOP all over the country--maybe held Congress for them. The NJ decision advances gay rights while also doing Dems minimal damage, which is a double bonus for gay rights. Much better than if the purists had gotten their way.

sageblue said...

OK, first I wikipedia'd heteronormativity just to see what they had to say and you're in there, so that's just weird.

To OeL:

pre-numbers: it was also historic in the lack of residency requirement, meaning that Rick and I can hop on over the Walt Whitman, wed, hop on back and sue Ed Rendell's ass.

2) What irks me is that gay marriage has become the end-all/be-all of HRC, Lambda, et al, and I just really don't get it. Maybe I'm too queer or defeated, but I don't really see marriage as the big deal everyone makes it out to be. And, frankly, it's delightful that Jersey is all pro-homo, but I still wouldn't get Rick's social security, and that's really what I'm after.

4) continuing with pessimistic sweeping generalizations: there's no way in hell we will ever extricate ourselves from civil marriage, no matter (or perhaps because of) how logical it is.

To Tmcd, I'd give you the etymology of sinister as a nice corollary: left-handed people are certainly in the minority and there's no real use to being left-handed, but they're born/made that way, and there's not a ton we can do about that...but there's no real reason to label them evil, now is there? Alas and alack though.

tenaciousmcd said...

sageblue, an anecdote on the left-handedness point. My grandfather was born a lefty, but, because it was seen as abnormal, he was trained to be a righty. So he did the vast majority of things righty. But the one thing he really loved was baseball. He was a really good pitcher, major league quality (even sat on a MLB bench for a year and pitched BP), but of course he had to do that lefty. What I took from this is that you can re-norm a lot of behavior, but usually not the most essential stuff. That's what the anti-gay forces don't get.

But there's also a tendency to want to throw the baby out with the bathwater--to think that because some norms are arbitrary, capricious, or inhumane, that norms themselves are unnecessary. And sexuality is a realm of human activity that cries out for norms, precisely because it is so essential. Rampant promiscuity, for example, is a bad model for family structure, social trust, and public health. No norm could eliminate all promiscuity, of course. And some promiscuity may be socially beneficial (as, say, a check on abusive spouses).

But even there, the usefulness of transgression comes from the fact that it IS a transgression of the norm. As Algernon Sidney argued, the rule of law could not exist without the right to revolt, but that doesn't mean we should just abandon law per se. I think this explains the ambivalence of a lot of gays about the marriage debate: norming of gay relationships is both gain and loss. Necessarily so, since the goods of human life are incapable of complete harmony.