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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Inside History
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Wednesday, September 30, 2020
Inside History
Guest Blogger
For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020). June Carbone and Naomi Cahn From Outlaws to In-Laws is masterful on so many levels that
it would take the rest of this review just to list them. It is a readable,
social, legal, religious history that documents the efforts to achieve marriage
equality in the United States through interviews with the leading participants,
close readings of legal briefs and cases, careful review of jurisprudence, and
attention to demographic changes and the geographic context of the developments.
And it is balanced, including discussion of the work of marriage advocates and
foes from both within and outside of the LGBTQ+ movement. The book has been
decades in the making (consider that some of the interviews were first
conducted 20 years ago, p. 914), and the resulting volume provides both
contemporaneous reactions and more long-term, retrospective analysis of the
movement along with lessons for other social movements.
In a book this long (753 pages of text; 1026 pages total), it is
hard to say that there is much that it does not cover; the questions about the
book therefore have to be ones of emphasis.
This is above all an on-the-ground and contemporaneous account of a
movement (with one of the authors appearing as an actor at times). It
emphasizes how those in the midst of the fight weighed their options, compromised
and then second-guessed the compromises, suffered setbacks, persisted, and
ultimately prevailed in winning a national right to marry in the Supreme Court
of the United States and ultimately in the court of public opinion. It is a triumphal account and it has a right
to celebrate a dramatic victory. In the background, however, is a nagging
question that remains unresolved: was marriage the right fight?
Movement activists had doubts from the beginning. Paula Ettlelbrick, for example, questioned
whether it was worth the effort to join so patriarchal an institution, one premised
on established gender roles at odds with much of gay culture (pp. 75-76). Nancy Polikoff joined Ettelbrick in also
questioning whether the celebration of marriage would deepen the exclusion of
“more marginal members of the lesbian and gay community (women, people of
color, working class and poor)” (pp. 76, 513) and, indeed, the movement gained
force “just as marriage was moving out of reach for working class and poor
Americans” (p. 513).
In that sense, it is interesting to consider what might have
been. The authors detail the development
of reciprocal beneficiaries, domestic partnerships, civil unions, and the pacte
civil de solidarite (PaCS) that helped spur a heterosexual movement out of
marriage in France (p. 157). More
critically, Eskridge and Riano mention in their reflections at the end of the
book the development of innovative parentage principles, such as second parent
adoption and de facto parentage (pp. 737-40) that permitted the creation of
families of choice outside of marriage and the expansion of contractual
provisions to cover health care decision-making and other subjects.
For a period, it appeared that LGBTQ+ activists, driven by their
inability to marry, would help create alternative family law doctrines that
addressed the legal status of the increasing number of Americans who form
nonmartial families. While marriage
equality opponents feared that gay marriage would undermine traditional unions,
the far more plausible outcome is that barring LGBTQ+ couples access to
marriage would have instead contributed to the dismantling of the institution. That’s because the absence of marriage
equality would have resulted in more attention to the rights of unmarried
couples, fostering an enhanced ability to pick and choose options that suited their
individual arrangements and experiment with the creation of new family forms, with
traditional marriage left to the religious, identified as it is in some parts
of Europe with an outdated sectarian past.
That did not happen in the United States, and the authors provide
some insight into why. The authors use
Derrick Bell’s concept of “interest
convergence” (pp. 646-49) to argue that
movements for minority rights succeed only when majority interests and minority
claims coincide. And they maintain that
the fight for marriage equality could succeed only after most Americans
“concluded that expanding marriage would not harm treasured institutions or
unduly influence children” (p. 647).
What they don’t emphasize to the same extent is that this transformation
happened because the cultural meaning of marriage had changed, and that change
did not just make it possible to imagine same-sex couples marrying, but, as we
argued in
Red Families v. Blue Families,
drove home the point that it was unjust not to allow them to do so. The critical first step, after all, in both the fight for LGBTQ+
equality and the transformation of marriage is the movement of sex out the
closet. At the beginning of this story of same-sex
marriage, sex -- for everyone -- needed to be in heterosexual marriage or in
the closet. Marriage was the institution that channeled heterosexual sex
(and its unavoidable risk of pregnancy) firmly into somewhere safe – a status
designed to ensure that men accepted responsibility for their dependent wives
and children. The door into marriage (and therefore into acceptable sex)
was shut firmly against LGBT couples and as a consequence, their sexuality,
their identity, their love for each other, and their existence as a community
was consigned to the shadows. The sexual revolution
opened the door. That story begins in 1960, with the FDA’s approval
of the Pill, at a time when
nonmarital sex, between same-sex or different-sex partners, was still
criminalized. As the availability of the Pill expanded during the 1960s,
allowing women more control over whether sex resulted in pregnancy, marriage no
longer became the mandatory institution for sex. And Eskridge and Riano note
that “[w]omen’s increasing independence and assertiveness inspired gay
men.” [p. 9] Since 1970, the average age of
marriage has increased, and so has the percentage of those who do not
marry. As unmarried sex became visible
(and normalized) and heterosexual sex no longer intrinsically tied to
procreation, the bias against homosexual sex became simply that: an ugly and
unjustifiable prejudice. That still does not
answer the question, why marriage? The
second step in the transformation was the change in marital roles. The increasing age of marriage – and the
greater investment in women’s autonomy and workplaces ties -- radically changed
marriage from an institution premised on women’s intrinsic dependence to one tied
to formal equality. Women won an equal
share of marital assets; men won a right to shared custody. Courts lectured long-term homemakers on the
need to get a job and the majority of married mothers entered the labor
market. The idea of marriage as the
union of one man and one woman who would perform complementary and
intrinsically gendered duties was rapidly disappearing. These changes threatened some traditional
couples, of course, helping to fuel some of the opposition to marriage equality
(p. 376), but the changes did not come from the LBGTQ+ community and they
underscored the injustice of excluding same sex couples. This leaves, however,
the final step: what, then, is marriage for?
We explained in Red Families v. Blue Families that marriage has
become a vehicle for upper middle-class investment in the human capital
necessary to navigate an increasing competitive and insecure society. The delay in marriage that came with embrace
of the pill has made it possible to invest in women as well as men’s
careers. At the same time, juggling two
careers, trading off child care, and managing job changes, lay-offs and
changing children’s needs requires a high degree of commitment, flexibility and
trust. For those who can manage these
committed relationships, the payoff in terms of greater investment in children
can be substantial. Yet, the commitment
and interdependence underlying modern marriage has also become a threat: the
ties to an improvident partner may, during an economic downturn or the
partner’s drug induced bender, wipe out the more responsible one’s
resources. Sociologists describe modern
marriage as a “capstone,” as an institution that signals maturity and
accomplishment. In Marriage Markets, we argued that the
better way to understand the change in marriage is to recognize that it has
become riskier because of the financial and behavioral instability built into
modern families. Understanding these
forces then makes it possible to understand where the real interest convergence
lies. Eskridge and Riano emphasize that
marriage equality involved public recognition, acceptance, and equal respect
for same-sex relationships (p. 667). Precisely
because marriage is a public institution, regulated by the state, it confers a
level of dignity that serves as a counter to the centuries of stigmatization
associated with homosexuality. And as marriage has become a signal of
accomplishment, it also became that much more important in the fight for equal
rights. The desire for recognition became an
understandable part of the fight for LGBTQ+ equality.. The remarkable part in
this interest convergence, however, lies in the nature of the opposition, which
used their objections to marriage equality to wage a politically profitable culture
war that diverted attention from the economic forces undermining family
stability . Eskridge and Riano poke fun at Justice Scalia’s reference to the
“homosexual agenda,” which he defined in his 1996 opinion in Romer v. Evans
as the effort at “eliminating the moral opprobrium that has traditionally
attached to homosexual conduct” and that he saw as inevitably culminating in same-sex marriage (p. 269). They describe a later interview with the Justice
in which they ask him about whether he saw himself as a modern day Cassandra,
who correctly predicted the course of events. They conclude that he saw his
target audience as Fox News, The Federalist Society and congressional
Republicans who embraced him and saw his remarks as fodder for their political
cause (p. 269). During the years in
which the fight for marriage equality took root, a well-funded countermovement
associated the decline in marriage rates and the increase in nonmarital births
to the move away from procreative intercourse as the purpose of marriage (pp. 253-256). The reason that the poor, the working class
and racial minorities were – allegedly -- no longer marrying? Same-sex marriage and everything it
represented. Maggie Gallagher declared
in 2003, “Once “Adam and Steve” can get married, it will be obvious that
procreation and rearing children by mom and dad is not what marriage is about.”
(p. 261). President George W; Bush took
these ideas and weaponized them during his 2004 re-election campaign (p. 271). During this entire
period of decrying the decline in marriage and somehow tying it to the fight
for marriage equality, the forces remaking American families disappeared from
view. Growing economic inequality
received little attention. Conservatives
discussing the “marriage problem” insisted that economics could not explain the
changes; “culture” and marriage equality as “civilizational rupture” were more
important (p. 261) . Economists like
Gary Becker attributed the family changes to loss of the “gains” that came from
gender specialization; they did not study the impact of economic insecurity on
working class family stability. And although large majorities of the American
public favored increased support for child care, paid family leave, and other
measures that would have furthered gender equality, they received little
political attention. The truth is that
the forces of opposition preferred to wage jihad against marriage equality
rather than address any of the forces making marriage a marker of class. The victory in Obergefell
has reset the family agenda. Scholars
like Andrew Cherlin now talk about the disappearance of blue-collar jobs rather
than the deinstitutionalization of marriage because of the disappearance of
gendered roles (p. 253). Economists have finally decided that employment
instability destabilizes relationships.
And the fight for LGBTQ+ recognition continues as it asks profound
questions about the basis for adult commitment to children – inside and outside
of marriage.
Eskridge and Riano end
their book noting that Obergefell “untethers civil marriage from
religious doctrine and natural law but demands that the polity seriously ask
the question posed twenty-one years ago by E.J. Graff: What is marriage for?”
(p. 745) In that spirit, we ask:
1. Does Obergefell v. Hodges’ celebration
of marriage proceed from marriage’s role as an obligatory institution or a
voluntary one? Have LGBT couples won
access to marriage only because it has become an instrument of self-definition
(and therefore intrinsically voluntary) or, now that LGBTQ+ couples are
included, does marriage regain its status as the foundation of society and a
prerequisite for family recognition and the legal definition of parenthood? 2. Will marriage equality interact
with changing gender roles to address provision for childrearing? Marriage,
as it has become more egalitarian in form, provides less recognition and
protection of the childrearing role, whether done by men or women. Will
same-sex marriage further challenge “the gender roles dictated by the central
marital trope of conjugality” (p. 76) and if so, what will that mean for child
custody and support decision-making? 3. Will opening marriage to
untraditional couples derail efforts to decouple state-conferred benefits from
marital status? As we noted, egalitarian
marriage has become the
province of the financially independent and the emotionally mature, and
marriage is now beyond the reach of a good part of the population, whether
straight or gay. This leaves open the
question whether marriage should continue be a basis for the extension of
benefits such as health insurance or the ability to marshal the resources
critical to childrearing.
The book masterfully
sets the basis for a reconsideration of what the marriage equality fight was
really about and what marriage means going forward.
June Carbone is the Robina
Chair of Law, Science and Technology, University
of Minnesota Law School. You can reach her by e-mail at jcarbone@umn.edu Naomi Cahn is the Justice
Anthony M. Kennedy Distinguished Professor of Law and Nancy L. Buc ’69 Research Professor in Democracy and Equity, University
of Virginia School of Law. You can reach her by e-mail at ncahn@law.virginia.edu.
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