Let me introduce myself.
I’m a law professor who teaches and writes on a variety of subjects, including disaster compensation; tort law; gun policy; sports law; and public health law. (I also write about these issues on my own blog, wordinedgewise.org, and as an occasional contributor to Slate Magazine. (Come visit!) But as you’ve probably guessed from my presence on this site, I’m especially interested in LGBT rights.
For the past year and a half and until last week, I’ve been writing a weekly column for the now-departed 365gay.com; now I have the privilege of talking to the lively and engaged audience here at The New Civil Rights Movement. Thanks to David Badash for giving me this platform. For now, I’ll try to post here as often as I have time and something to say, but not on a certain day each week. I’ll also be weighing in on any major developments in litigation or legislation as they arise.
Marriage equality is likely the most covered issue on this site, and I’ve written about it extensively, too. I’ll continue to do so here, but today let’s look at the deeper question:
Why all this attention paid to marriage equality? The arguments against the emphasis are well-known. In The Trouble with Normal, Michael Warner has criticized the movement for what might be called a limited approach to dignity – let’s get the gays equal to the straights, but leave out all those in other relationships, who, by this emphasis, are disrespected.
There’s something to this argument, but Warner misses a couple of crucial points.
First, law sends a message about LGBT people by excluding same-sex couples from marriage. A second and related point is this: Laws that discriminate don’t, in fact, only harm those who want to engage in the prohibited activity – here, marriage. They harm others in the “out” group, too.
To prove the point, consider the historical treatment of women under the marriage laws. The crippling legal disabilities they faced are well known. Until the late 1800′s, women didn’t exist as individuals once they married. Their legal existences were swallowed whole by marriage, with the husband gaining the right to manage what had been their property, to bring lawsuits in their wives’ names, and to make binding decisions for them. Women had no right to contract, either.
By conferring legal rights and dignity on same-sex couples, society broadens the group whose humanity is recognized. In short, legal equality can signal societal acceptance of the radical idea that people should be able to structure their lives in ways that make sense for them.
This latter disability was a basis for the Supreme Court’s decision in Bradwell v. Illinois, a 1873 case where the Court found no constitutional problem in the fact that Illinois wouldn’t admit to the state bar a woman who was otherwise qualified to practice law – after all, married women couldn’t enter into contracts, which would be more than a minor inconvenience in her effort to establish a professional relationship with her clients.
But, to quote the Cat in the Hat, “that is not all.” The Court’s ruling affected not only married women, but all women; the prevalence of married women was enough to allow the (all-male) Court to conclude that no exception need be made for unmarried women. As Justice Bradley thundered in a concurring opinion, these outliers weren’t fulfilling “the[ir] paramount destiny [as] wife and mother.” Because they were violating “the law of the Creator,” Bradley must have thought that allowing these women to practice law would have sent the wrong signal to other women who might then have been tempted to shuck the whole butter-churning, sock-darning, ten-kid-raising domestic gig for a career.
So the suffocating marriage laws ended up devaluing not only married women, but also their unmarried sisters.
Marriage equality is similar. Here’s a good example: Since we can’t marry in most states, some courts have refused to recognize us as proper plaintiffs in torts suits where we claim interference with a relational interest. Now, a court could hold that a same-sex relationship can ground a claim for loss of consortium (companionship) or for the emotional distress at seeing our partners injured, but often they don’t.
In one emotional distress case, a judge opined that our relationships weren’t worthy of protection because they weren’t marriages and — tying up the circular argument quite nicely — the legislature had determined that only opposite-sex couples could marry. We lose because we’re not married even though we can’t marry! Granting us marriage rights might get the court to see things differently, though of course there are no guarantees.
The denial of equality has other, less direct effects, too. In a culture that still sees marriage as an institution toward which responsible adults gravitate, we’re easier to demonize if we can’t marry.
Once marriage equality takes hold (as it will, inevitably), the hill becomes steeper. No longer will reasonable people be able to ignore the families in plain sight; and such ignorance, whether innocent or deliberate, is the discriminators’ best ally. Equality doesn’t just help those who directly benefit from it. Warner fears that normalization of the two-parent, child-rearing gay family will sharpen the contrast between those who conform to dominant norms and those who don’t. But it’s fantasy to think that mainstream society will become any more disparaging of the most radical queer people than it already is. Instead, by conferring legal rights and dignity on same-sex couples, society broadens the group whose humanity is recognized. That broadening, I dare hope, can be a giant step toward recognizing others just outside of it, and then outward from there — and so on. In short, legal equality can signal societal acceptance of the radical idea that people should be able to structure their lives in ways that make sense for them.
I’m not naive. I don’t think that the most feared and detested of our LGBT tribe will be swept into a warm embrace just because we can marry. But on balance it will do more harm than good even to those who can’t or won’t take advantage of it. Add to that the obvious, intrinsic benefits of marriage equality and we’re talking about an easier case than is sometimes acknowledged.
As I’ve said before, the law both teaches and confers dignity; to that I’d add that the dignity doesn’t stop at the law’s border.
Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.
He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.
John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.
We invite you to sign up for our new mailing list, and subscribe to The New Civil Rights Movement via email or RSS.