Everything Else Being Equal

There's just too much going on to write about, and besides I've been spending too much time writing comments elsewhere instead of tending my own garden. In fact, I'm cannibalizing most of this post from a comment I wrote on a post at Emptywheel that celebrated today's Ninth Court decision overturning the anti-same-sex marriage amendment Proposition 8. As usual, bmaz did a fine job, clearly explaining the legal issues involved in the decision. It's good to see that the Ninth ruled that Judge Vaughan Walker was qualified to sit as the trial judge in Perry v. Brown, even though Walker is gay. The people who'd argue otherwise don't seem to realize what a can of worms they're opening: if a gay judge is (supposedly) biased to rule in a case involving gay people and the law, then so is a heterosexual judge, and that would mean that such a case could never go to court; for that matter, N. Randy Smith, the sole dissenter in today's ruling, is a Mormon, and should have recused himself given the Mormons' role in the passage of Proposition 8.

I'm glad to see Proposition 8 go down, just because (as I've said before), it's not a good thing to have discrimination of any kind enshrined in a state constitution. But I'm still uneasy about same-sex marriage and its rationales, as exemplified by some remarks in today's decision. Hence my comment, pasted in below with some modifications and additions.

This is probably a foolish question that has been asked and answered before, but I'm going to ask it anyway. It has to do with something in one of this quotation from today's decision:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those opposite-sex couples.

No doubt because I'm an old gay liberationist, I'm worried about the way the gay movement has hitched its (and our) wagon to the idea of sexual orientation as a "status" -- that we are biologically different from straights, and deserve to be equal because we can't help ourselves, we were born this way -- and that we should be allowed to marry each other because we are incapable of marrying someone of the opposite sex. It has always seemed to me dangerous (politically, if not legally) to base our claims for "equality" on what has always been known to be very shaky science, to put it charitably. I recall seeing a passage from a Canadian ruling on same-sex marriage which justified letting gays marry on just those biological grounds. But what happens if that bad science is ever definitively disproved? Will we lose our rights? One mark of how perilous these claims are is the hysteria and waves of personal attacks that result whenever someone (Cynthia Nixon, most recently) challenges these claims and the notion that people have no right to make sexual choices; if everybody doesn't agree that GLBTQQA people are born that way, then They can change us skree skree skree!

As far as I know, Loving v. Virginia was not decided on the ground that the Lovings were born with "racial orientations" that rendered them incapable of marrying a person of the same race. Nor does religious freedom mean that God made me a Methodist or a Quaker or a Papist and God doesn't make trash. Nor did the unquestioned fact that women and people of color are Born That Way ever do them any good against bigots who saw them as less than full citizens; on the contrary, biological determinism was used to argue that they were inferior breeds. I really believe that the born-gay claim has dug us into a deep and scary hole.

Same-sex marriage is not a matter of status, it's a matter of structure. If it means that gays/lesbians can marry other gays/lesbians, it does something strange. It even supports the bigots' derisory claim that homosexuals can marry, as long as they marry a homosexual of the other sex, which would be a "gay" marriage because neither partner would be heterosexual. And where do bisexuals fit in here? If two bisexuals marry, is that a bisexual marriage? Can it be argued that only 'pure' homosexuals can avail themselves of same-sex marriage, since bisexuals could marry heterosexually if they 'chose'? Will people seeking same-sex marriage be required to prove themselves Kinsey Sixes to avoid letting people of the wrong status game the system? To paraphrase Mr. Justice Stewart's concurring opinion in Loving v. Virginia, the case is not the sexual orientation of the actors -- it's about their sex. Fixating on sexual orientation as status simply confuses the issue.

This is also why the term "marriage equality" makes me nervous. The function and effect of marriage is precisely to designate some relationships as inferior to others: unmarried couples don't have the same status or dignity as married ones, no matter how much they love each other or how long they've been together. (And I've seen enough "marriage equality" proponents fume about heterosexuals who don't want to sanctify their coupledom with marriage to be wary of their openness and tolerance, however much they demand them for themselves.) But then, the inclusion of 'marital status' in antidiscrimination statutes isn't meant to imply that married couples shouldn't be granted special privileges and benefits that unmarried couples can't access; generalized, that could complicate things drastically. As IOZ once asked, not so rhetorically, if health care is a human right, why should you have to get married to get it?

My question, in the end, is why the question of same-sex marriage got tied to our "status" as gay people. It's not logically necessary -- compare Loving v. Virginia, or other areas of non-discrimination -- and it makes assumptions about the people involved that probably aren't true. While I'm perfectly happy to see Proposition 8 be overturned, I think that the reasoning is important, and bmaz' post shows that to be true in at least certain respects. It seems that it's because so many gay people are obsessed with the idea that we have a different nature than straight people do, while being not different at the same time. They're two contradictory claims, and that can't be good for the politics, or even for our own self-image.