Performing the Nation: Contesting Same-Sex Marriage Rights in the United States

Abstract

Public opinion polls, Supreme Court decisions, and changes in federal and state law suggest that the United States is witnessing a support for lesbian, gay, bisexual, and transgender (LGBT) rights today that few would have predicted five years ago. This article offers a critical assessment of that growth as it is manifest in the context of marriage equality. It shows that efforts to advance same-sex marriage rights, while offering an important challenge to oppositional arguments, actually rely on norms quite similar to those of marriage equality opponents. Both advocates and opponents envision and enact the kind of citizenship appropriate to national health and identity in surprisingly similar ways. Both reinforce a set of norms, laws, and practices that make the right to marriage almost synonymous with family and responsible parenting. Such a consolidation of repronormativity may have troubling consequences for efforts to advance LGBT rights at home and abroad.

Notes

I use “LGBT rights” in reference to efforts within the United States to advance the interests of those with nonnormative sexual identities and gender orientations and “SOGI rights” in reference to global efforts. The former reflects the currently dominant nomenclature in America, while the latter references international documents like the Yogyakarta Principles.

Upon the announcements of the Hollingsworth and Windsor rulings, marriage equality advocates cheered, sang and cried tears of relief and joy on the steps of the Supreme Court. The National Gay and Lesbian Task Force hailed the rulings as “a significant leap forward for freedom and justice for same-sex couples” (National Gay and Lesbian Task Force 2013). Lambda Legal popped champagne corks in their office in honor of the decisions (Lambda Legal 2013). The San Francisco Courthouse was lit up in a rainbow of colors. And international organizations like Human Rights Watch and the International Gay and Lesbian Human Rights Commission (IGLHRC) celebrated these acknowledgements of the equality and dignity of LGBT individuals along with the national groups (Human Rights Watch 2013; IGLHRC 2013).

Arizona and Kansas introduced such bills. As of this writing, the Arizona bill has been vetoed by the governor and the Kansas bill is in the State Senate.

While it is the case that, at least biologically, only women can “bear” children, advances in reproductive technologies have radically altered the ways in which individuals can share in the biological production of children. Gay and lesbian couples are now not only able to adopt children but they are also able to beget them.

I am indebted to Michael Warner's concept of “reprosexuality” (1991) and Katherine Franke's (2001) understanding of repronormativity but I use the term in a more expansive manner than these scholars, as I discuss below.

As Michaele Ferguson (2007) has illustrated, the way a debate is framed is as much a practice of politics as any legal or moral position taken up on the issue. It shapes how we see the world, opening up as well as foreclosing certain questions and responses.

My point here is not to deny that there are cases where it is clear that an American citizen has a right to marry someone of the same-sex according to the law. Nor do I mean to diminish the importance of efforts to prove that, in cases where the law is not explicit, moral principles and legal precedents should persuade us to recognize a practice as legitimate or illegitimate. However, as history has proven, neither a written document nor explicit state recognition alone is enough to make a reality of “having of right” or being of “a person with rights.”

Though Richard Baker and James McConnell were originally denied a marriage license by the state of Minnesota, they were eventually issued one in Blue Earth County after Baker changed his name to the gender-neutral Pat Lyn. Afterwards, the two men took part in a traditional marriage ceremony presided over by a pastor (Pescovitz 2013; see also Klarman 2013: 18–22).

Franke (2001) uses repronormativity to focus primarily on those discourses and policies that create maternal identity and work to constitute women as mothers.

Though there is a tendency to associate opposition to same-sex marriage with particular religious convictions, the dominant rhetoric of recent court cases focused more on the centrality of marriage-cum-family to national stability and longevity. The primary legal justification for limiting marriage rights to opposite-sex couples, in other words, has less to do with concerns about preventing sinfulness and God's wrath than with what is good for the nation: the channeling of the procreativity capabilities of heterosexual individuals in the proper direction. Religious arguments certainly populate the amicus briefs associated with the different court cases concerning marriage equality, but they are not the main ones used by lawyers. According to Liu and Macedo (2005), the shift away from the language of religion and explicit attacks on homosexuality, at least at the legislative level, was the result of a conscious strategy adopted by opponents of LGBT rights in recognition that, as Judge Walker noted in Perry v. Schwarzenegger (2010), a court is only supposed to consider secular arguments.

Those quick to dismiss Robert George's arguments should note that Justice Alito cites George's work in his Windsor (2013) dissent.

In some states, of course, the felicitous performance of a marriage does not require a particular set of spoken words. Common law marriages only require cohabitation for a particular length of time may. Even Austin (1962/1995), theorist of the speech-act, recognizes this possibility: “The uttering of the words is, indeed, usually a, or even the, leading incident in the performance of the act…but it is far from being usually, even if it is ever, the sole thing necessary if the act is to be deemed to have been performed” (8, emphasis in original).

On same-sex marriage and citizenship specifically, see Brandzel (2005).

According to Article 16 of the Universal Declaration of Human Rights, all individuals have a right to wed and create families. This right, spelled out in greater detail in the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages, emphasizes the importance of making it possible for individuals to choose whom they marry, to voluntarily agree or consent to form with another person the bonds that constitute a marriage in a particular locale. And to the extent that the international community or individual nations accept the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles 2007) as valid, this is a right that should be extended to gay, lesbian, and transgender individuals. See also the United Nations Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages that opened for signature and ratification in 1962. The United States has not ratified it (Schwelb 1963).

If we follow Lynn Hunt's (2007) history, human rights have their origins in the philosophical and political tradition on which the United States was founded and this suggests that the country's constitutional law is inextricable from that tradition (Kateb 2011). In the contemporary context, the language of human rights and the struggle for marriage equality in the United States come together in the words of political leaders like Hillary Clinton and Joe Biden, on the websites of prominent international human rights organizations like Amnesty International, in press releases from the White House, and documents of the International Gay and Lesbian Human Rights Commission. And just as the concept of dignity is central to, arguably constitutive of, the meaning of human rights, it is at the heart of Justice Kennedy's opinion striking down Section 3 of DOMA.

This tendency is not new. As Nancy Cott (2000) illustrates, the United States has often used the expansion of marriage and family rights to mark its civility vis-à-vis other nations.