BY Claire Potter ON June 28, 2015
I am not sure that the recent decision in Obergefell v. Hodges is a victory for love, which is often such a fickle emotion. Nor am I sure that it is a victory for respectability, or the children who need far more than respectability to thrive. But I am sure that it is a victory for equal rights, and that it offers an opportunity for our queer political community to move on other social justice issues. Marriage was never the be all and end all of perfect equality, as mainstream media and LGBTQ advocacy organizations would have it. However it was a clear sign of unequal citizenship, and a suppression of our right to have the families we want to have in the ways we want to have them. Or, I will add, to not have them if we so choose, and say why. LGBTQ academics who are vigorously anti-marriage might want to chew on this one as they take to Facebook to predict the End of Days: when it is actually a choice not to marry — to be plurally committed, to be polyamorous, to be domestically organized outside monogamous legal bounds — how much more powerful is that as a statement of your sexual politics?
I might add that it may be an important turn for national politics that LGBT families will fade in their significance as the GOP’s electoral wrecking ball. Those marriage bans had one role, and one role only by the 1990’s: to muster voter turnout through homophobic robocalls and the creation of moral panics. This wasn’t democracy, as gay marriage opponents are framing it, nor did such strategies support freedom of religion. They were cynical campaigns of terror against all LGBT people, and they were a form of voter fraud that sapped the energy of progressive organizers and required extensive disinformation. In response to this propaganda, activists dug in, and so did historians, writing a range of wonderful books that exposed official homophobia for what it is: unequal citizenship and an offense to the Constitution.
Thus, the decision in Obergefell is not only a victory for the lawyers, it is a victory of good history over bad history. Not surprisingly, Harvard historian Nancy Cott’s influential political history of marriage, Public Vows: A History of Marriage and the Nation (2002) is cited repeatedly by the majority: you can read the entire text of Friday’s decision here. Trigger warning, if you find sweeping scholarly generalizations traumatic: you will also see bad history and selective history on both sides of the case, a continual frustration for me even when I read SCOTUS decisions that I like. Generalizations about the histories of family, childhood and marriage offer a perspective on why first year students might come to college making arguments that begin with phrases like “For all of human history” and “Since the dawn of civilization.” If Supreme Court justices do it, why not eighteen year olds?
The histories of gender, sexuality and feminism are far more complicated than those Obergefell has employed, something we need to keep in mind as we celebrate this milestone. Marriage is right for some people and not for others, but the past demonstrates that it is far from a uniquely perfect way for people to organize their lives. All sorts of people, across time and space, have been differently married, happily unmarried, or have privileged different forms of social organization over monogamous marriage. Some people function within systems in which arranged marriage, not romance, dominate the process of creating a family. The unmarried or plurally married have often viewed (many still do) these domestic arrangements as crucial to their personal dignity (a keyword of Obergefell) and to their right to free expression. If it is perhaps technically accurate to say that, over millennia, marriage “has promised nobility and dignity to all persons, regardless of their station in life,” that promise has been but a promise, and it is one that is ever more fragile one in the United States in the face of persistent racism, sexism and social inequality. And I am not even going to begin to ask what Justice Roberts’ clerks were thinking when they let him go out there and rant, in a minority opinion, about the marital preferences of the “Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” For this they went to Harvard and Yale? Well educated conservatives can do better than that.
It doesn’t take a Ph.D. in history or cultural studies to point out that legal arguments and court decisions use all kinds of data oddly, sometimes risibly, and the narrative in Obergefell is no exception to the rule. Are LGBT folk likely to do better at marriage than straight people? No, but that isn’t what the Constitution requires of anybody. Has love won the day? Probably not: love is one of the more changeable emotions, a marriage destroyer as well as a marriage creator. Will children in LGBT families feel more secure? Some will, perhaps, but they would be wise to keep a suitcase packed all the same just in case. With a national 50% divorce rate that gays are sure to match eventually (indeed, one purpose that this decision serves is to permit gay divorce in all fifty states), children or adults in LGBT families would be fools to believe that the happy ending promised by marriage boosters’ most starry-eyed proponents is now theirs. Anyone who studies the history of childhood, or who has ever seen a joint custody agreement play out in real time, knows that co-parenting after a divorce, even when custody is not contested, is an economic and emotional challenge .
But the Constitution has won the day, and I’ll take it! For decades, achieving gay rights has been a process of accepting half-measures, concessions and small victories while I prepare to be kicked in the face every time a SCOTUS decision or a hateful anti-marriage ballot measure is pending. Structural inequalities need to be rectified wherever we identify them, and full citizenship rights are not to be sneezed at. Critics who are angry at the amount of queer funding that Obergefell consumed have a point. However, they may also wish to reflect on the fact that LBGT people didn’t start this fight: the Catholic Church, Protestant mega-churches, the Republican Party and cynical political operatives bankrolled by the radical right did (see, for example, Rimmerman and Wilcox, The Politics of Same-Sex Marriage, 2008). To presume that crucial and underdressed issues — homelessness, poverty, health care, and the plight of queer youth — could be rectified as full citizenship rights for LGBTQ people as a whole were being retracted strikes me as fundamentally misguided, impractical and wrong.
Of course, we will also never know how a different LGBTQ national agenda focused on racism or economic inequality might have played out, because that isn’t the direction history went. Take a look at Timothy Stewart-Winter‘s wonderful op-ed in The New York Times, urging us to attend to social agendas that have stalled and been rolled back, even as the bans on sexual inequality have crumbled. We are also looking forward to the November pub date of Katherine Franke‘s Wedlocked: The Perils of Marriage Equality (NYU: 2015), which you can pre-order here. While you are waiting for Franke’s book to appear in your mailbox: for a bracing reminder of the feminist intellectual roots of queer studies, one that sketches a history of why marriage is particularly bad for women within heteropatriarchy, go read Gayle Rubin‘s marvelous debut article “The Traffic in Women: Notes on the Political Economy of Sex” (1975).
Getting the government out of the business of official homophobia is another important outcome of Obergefell: a new half-hour documentary, Uniquely Nasty: the U.S. Government’s War on Gays tells part of this story. By journalist Michael Issikoff and produced by Yahoo Viewfinder, it is available free on line. It will be particularly interesting if you are a political historian: the film begins with George W. Bush committing to gays in his party and then throwing them under the bus by using bans on same-sex marriage as a cynical get out the vote strategy. Couple this with David Johnson’s The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (2004).
Finally, the Interactive Timeline we prepared on Marriage and Marriage Resisters in LGBTQ history is immediately relevant to debates between those who uncritically applaud the opening of marriage to all, those who have always opposed gay marriage, and everyone in between. This exhibit also includes the amicus briefs filed by the American Historical Association and the Organization of American Historians on behalf of marriage equality.