The Ongoing Struggle for Recognition

Flickr (cc)

 

While the Supreme Court’s decisions on same-sex marriage have caused elation among many in LGBTQ communities and advocacy groups, not all who advocate LGBTQ liberation were unequivocally delighted. To be sure, those who insist that marriage can only be “a union between one man and one woman” are certainly the loudest right now in criticizing the decisions. But their noise should not drown out the reservations of those who promote LGBTQ rights, because they shed light on issues concerning marriage that these decisions do not resolve and that are likely crucial to the evolution of family law in the United States. 

 

One group—which includes the Human Rights Campaign and the editorial board of the New York Times, among many others—finds that the decisions did not go far enough in recognizing the right to marry. The Court should have held that marriage is a fundamental right that cannot be withheld by the states or the federal government. Instead, United States v. Windsor held that the Defense of Marriage Act (DOMA) was unconstitutional because it denied equal protection to married couples in states that have already legalized same-sex marriage. There was no suggestion that states are required to recognize same-sex marriage. Hollingsworth v. Perry, which addressed California’s Proposition 8—a ballot initiative that banned same-sex marriage in the state—did not discuss the substance of the matter. The Court simply ruled that California’s failure to appeal the trial court’s ruling that Prop 8 violated the rights of the plaintiffs in that case was the end of the matter; no one else had standing to challenge the ruling. By this ruling on procedure, California became the thirteenth state to legalize same-sex unions. These decisions certainly make progress in granting legal status to same-sex marriages, and thereby advance the social recognition and financial benefits such recognition carries with it. But the advocates for marriage equality lament the failure of the Court to find that marriage is a fundamental right. The decisions fell short of striking down all state bans on same-sex marriage in the way that Loving v. Virginia in 1967 struck down all state laws prohibiting inter-racial marriages.

 

Another group—which includes the organizations “Beyond Marriage” and “Against Equality,” the Law Commission of Canada in its Report “Beyond Conjugality,” and a sizable number of LGBTQ scholars, activists, and allies—deplores the amount of time, attention, and money given to promoting marriage equality as aping heterosexual practices rather than affirming new kinds of social and familial bonds. Moreover, marriage links important economic benefits to marital status—as illustrated in Edith Windsor’s complaint in the DOMA ruling that she was denied a $360,000 survivor’s tax benefit that a spouse in an opposite-sex marriage could have claimed. The focus on marriage, these critics claim, sideline arguments that we all have a social responsibility to provide health and retirement benefits to all citizens regardless of marital status. Moreover, preoccupation with legal recognition of same-sex marriage can reinforce a tendency to see marriage as the defining marker of “family” itself, inscribing a particular form of family as the social norm or, worse, the only legitimate grounding for partner or parent-child relationships.

 

The necessity of thinking hard about what constitutes a “family” was glaring evident in another decision handed down by the Supreme Court on the same day as Windsor and Perry. In Adoptive Couple v. Baby Girl, the Court held that the Indian Child Welfare Act did not bar the State of South Carolina from terminating the parental rights of an unwed Native American father seeking to deny consent to the adoption of his child. In my view the decision is a travesty of statutory interpretation; Justice Sotomayor’s dissent is a deeply moving reminder of the many ways in which recognition of family ties matter to parents and children alike, and the huge role of the state in setting the terms of who’s in and who’s out of various families. 

 

Make no mistake: the Court’s decisions yesterday were big steps forward. But we shouldn’t let the occasion obscure the complex issues that remain to be addressed. The battle over what constitutes just marriages and justice in marriage law will continue. It will engage not just proponents and opponents of the expansion of LGBTQ rights, but also those who see very different paths leading to respect for a diversity of both spousal and parent-child relationships. In the midst of celebrating greater recognition and acceptance of same-sex partnership, those of us interested in social inclusion should rededicate ourselves to securing basic social and economic rights not linked to marriage, and to winning recognition of the multiple ways in which people live out profound and life-defining commitments to others—a rich diversity of family life of which marriage is but one form among many.

 

Mary Lyndon Shanley is Margaret Stiles Halleck Professor of Political Science at Vassar College. For more from her on the role of marriage in family relationships, read Just Marriage.