(21)
DEBATE
THE ARGUMENT FOR SAME-SEX MARRIAGE
Perry v. Schwarzenegger, in which a federal district court held
California’s ban on same-sex marriages unconstitutional, is set for
expedited review in the Ninth Circuit; many argue that the case will
ultimately be decided by the Supreme Court. The arguments for and
against the constitutionality of such statutes are thus at a fever pitch.
In an article published earlier this year, Professors Nelson Tebbe and
Deborah Widiss argued that marriage rights are best conceived of as
an issue of equal access, rather than one of equal protection or
substantive due process. Nelson Tebbe & Deborah A. Widiss, Equal
Access and the Right to Marry, 158 U.
PA. L. REV. 1375, 1377 (2010).
In The Argument for Same-Sex Marriage, Professors Tebbe and
Widiss revisit the arguments they made in Equal Access and the Right to
Marry and emphasize their belief that distinguishing between
different-sex marriage and same-sex marriage is inappropriate. They
lament the sustained emphasis on the equal-protection and substantive-
due-process challenges in the Perry litigation and suggest that an equal-
access approach is more likely to be successful on appeal.
Professor Shannon Gilreath questions some of the
fundamental premises for same-sex marriage in Arguing Against
Arguing for Marriage. He challenges proponents to truly reflect on
“what there is to commend marriage to Gay people,” and points to his
own reversal on the question as evidence. Though he stands fully in
opposition to critics of same-sex marriage who use the stance to veil
attacks on equality generally, Gilreath argues that marriage can be
seen as a further institutionalization of gays and lesbians that risks
“assimilationist erasure of Gay identity.” Gilreath concludes by noting
that to the extent that marriage is assumed to be normatively good,
the Tebbe-Widiss equal access approach to same-sex marriage
recognition may be the most successful; still, he invites those on all
sides of the debate to vigorously challenge that assumption.
22 University of Pennsylvania Law Review [Vol. 159: 21
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OPENING STATEMENT
The Right Way to Argue for the Right to Marry
Nelson Tebbe
†
and Deborah A. Widiss
††
How should courts think about the right to marry? This is a
question of principle, of course, but it is also a key question of
litigation strategy. In August, district court Judge Vaughn Walker held
California’s ban on same-sex marriage unconstitutional. Perry v.
Schwarzenegger, No. 09-2292, 2010 U.S. Dist. LEXIS 78817, at *217
(N.D. Cal. Aug. 4, 2010). The Ninth Circuit has announced that it will
hear the appeal on an expedited basis; it is widely expected that the
Supreme Court will ultimately decide the case. It is therefore
especially important right now to craft arguments that can appeal to
moderate judges.
David Boies and Ted Olsen, who surprised the legal world when
they teamed up to bring the case, are extremely skilled lawyers. They
built a very strong factual record in Perry, and they deserve credit for
winning a big victory in the trial court. But we believe that the legal
arguments they have been emphasizing, and which serve as the basis
for the trial court decision, are vulnerable on appeal. In an article
published earlier this year in the University of Pennsylvania Law Review,
we argued the right to marry is best conceived as a matter of “equal
access” to government support and recognition, and that the best
doctrinal vehicle for that conception is the fundamental-interest
branch of equal protection law. Nelson Tebbe & Deborah A. Widiss,
Equal Access and the Right to Marry, 158 U.
PA. L. REV. 1375, 1377
(2010). Our approach offers a sensible, moderate way for judges to
strike down bans on same-sex couples’ marriage rights and a more
satisfying way to conceptualize the right to marriage generally.
I.
CIVIL MARRIAGE AND DUE PROCESS
Two other arguments have been the focus of the California
litigation, as well as prior challenges of other state provisions limiting
marriage to different-sex couples. The first is that everyone has a due
process right to get married in a state-recognized ceremony. This
claim relies on precedents, like Loving v. Virginia, 318 U.S. 1 (1967), in
†
Associate Professor, Brooklyn Law School.
††
Associate Professor, Indiana University Maurer School of Law.
2010] Same-Sex Marriage 23
which the Supreme Court has referred to marriage as “fundamental.”
Judge Walker found a due process violation in the California case, but
almost every other federal and state court addressing the issue has
rejected this claim. Those courts have concluded that “marriage” is
“deeply rooted” in American “history and traditions” under the
traditional due process test, but that “same-sex marriage” is not.
Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006) (quoting Washington v.
Glucksberg, 521 U.S. 702, 703 (1997)).
We disagree with the line that courts draw between “marriage”
and “same-sex marriage.” If there is a due process right to marriage, it
should be understood as a fundamental right to choose one’s
spouse—a freedom that same-sex couples should share. But we see a
deeper flaw with this argument: there may be no due process right to
civil marriage at all, even for different-sex couples. The cases typically
cited to support a due process-protected right to marry link marriage
to a due process-protected interest in procreation. See, e.g., Loving v.
Virginia, 388 U.S. 1, 12 (1967) (citing Skinner v. Oklahoma ex. rel.
Williamson, 316 U.S. 535, 541 (1942)). While this link may have made
some sense in an earlier era when many state laws made marriage a
prerequisite to legal childbearing, today having children outside
marriage is accepted, both socially and legally.
In fact, civil marriage—that is, a marriage that meets state law
requirements and thus is recognized by the state—is different from
other family-related rights, such as the right to make choices
regarding child rearing, sexual intimacy, contraceptive use, or
termination of a pregnancy. These other rights can be exercised
without any state involvement, and due process protects against
burdensome government regulations that could unduly limit
individual choices. Civil marriage, by contrast, is a government
program that provides both material and expressive benefits and
imposes certain obligations. In this respect, civil marriage is also
different from private or religious marriage. Civil marriage requires
government sanction—a marriage license—while private or religious
marriage does not.
To see this more clearly, imagine a state that chose to abolish civil
marriage altogether, leaving marriage to religious groups or other
private organizations. Although state and federal courts assert that
marriage is “unquestionably” a fundamental right, they also
sometimes suggest that states could simply stop performing marriages.
Commentators sometimes propose this as a “solution” to the same-sex
marriage debate. Dorian Solot & Marshall Miller, Taking Government
24 University of Pennsylvania Law Review [Vol. 159: 21
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Out of the Marriage Business, in MARRIAGE PROPOSALS 70, 71 (Anita
Bernstein ed., 2006); Edward A. Zelinsky, Deregulating Marriage, 27
C
ARDOZO L. REV. 1161, 1163 (2006). Such a state could decide to
offer civil unions or domestic partnerships. Or it could designate
some other form of family relationship, such as the parent-child
relationship, as the basis for government benefits or recognition.
While these reforms are probably not politically viable, we agree with
other scholars who have concluded that they would not violate any
constitutional rights. See, e.g., Patricia A. Cain, Imagine There’s No
Marriage, 16 Q
UINNIPIAC L. REV. 27, 40-43 (1996); Cass R. Sunstein, The
Right to Marry, 26 C
ARDOZO L. REV. 2081, 2083 (2005). Yet getting out
of the marriage business would impose the maximum possible burden
on access to civil marriage. If the Due Process Clause really did
guarantee a right to marry civilly, a law ending civil marriage would
almost certainly be unconstitutional. This helps illustrate the
weakness in the due process argument: a right to enter a private or
religious marriage may indeed be protected by due process, but a
right to civil marriage is likely not.
II.
CLASSIFICATION-BASED EQUAL PROTECTION
The second argument emphasized in the California litigation, and
other similar challenges, is that all government distinctions on the
basis of sexual orientation should be subject to heightened scrutiny
under the Equal Protection Clause. This approach has had some
success. Several state supreme courts have held that classifications on
the basis of sexual orientation are presumptively unconstitutional and
have, under this more rigorous standard, struck down state laws that
exclude same-sex couples from civil marriage. Moreover, in the Perry
case, the trial court held that the proponents of Proposition 8 had
failed to establish that there was even a rational basis for the law. This
was likewise true in Massachusetts. Goodridge v. Dep’t of Public Health,
798 N.E.2d 941, 961 (Mass. 2003). However, courts in several states
have held that classifications on the basis of sexual orientation do not
raise special concerns and therefore do not prompt any presumption
of invalidity. Courts in New York, Washington, Maryland, Indiana,
and Arizona have all upheld different-sex marriage laws under
ordinary scrutiny, as have several lower federal courts.
We agree that there is probably not even a rational basis for bans
on same-sex marriage. The primary justification offered in litigation
today—that legislatures may limit marriage to different-sex couples
2010] Same-Sex Marriage 25
because they are the only ones who may accidentally procreate and
thus need to be encouraged to form stable families—strikes us, and
many others, as far-fetched. We also agree that classifications on the
basis of sexual orientation should be presumptively suspect. But there
is a widespread sense that the Supreme Court is unlikely to announce
a new suspect class comprised of gay men and lesbians. Indeed, the
Court may be moving away from the tiers of scrutiny framework
altogether. And while there are instances in which the Supreme
Court has been willing to strike down laws even under the rational
basis standard, see, for example, Romer v. Evans, 517 U.S. 620, 635
(1996), courts generally are quite deferential to legislative judgments.
As a practical matter, therefore, a classification-based equal protection
argument may be unlikely to succeed in higher federal court or in
many state courts.
III.
EQUAL ACCESS
Equal access holds that, once conferred, the right to marry in a
legally recognized ceremony is fundamental. In other words, if a
government decides to recognize and support civil marriage, it cannot
exclude same-sex couples without providing an adequate justification.
There is a particular harm when the material and expressive benefits
of a fundamentally important government institution, such as civil
marriage, are not extended evenhandedly. This approach differs
from both the due process theory and the classification-based equal
protection theory. It recognizes a harm may exist even if the relevant
conduct is not protected by due process and even if the exclusion is
not based on a suspect classification. Independent analysis is required
to determine whether a different-sex marriage requirement violates
equal access.
Even though our approach has been sidelined in same-sex
marriage cases, equal access is well grounded in longstanding case law.
In fact, the Supreme Court has already applied this reasoning to
marriage itself. In an important decision, the Court struck down a
Wisconsin law that prohibited parents who owed child support from
marrying. Zablocki v. Redhail, 434 U.S. 374, 389-91 (1978). It
concluded that access to civil marriage was too important to exclude
people simply because they couldn’t pay. Although the Court
referred to the full range of precedents that spoke to the fundamental
importance of marriage, the decision was ultimately grounded
squarely in equal protection. Id. Strict scrutiny was applied not
because singling out scofflaw fathers was particularly suspect, nor even
26 University of Pennsylvania Law Review [Vol. 159: 21
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because the law placed a particularly heavy burden on poor people,
but instead because the government differentiation impacted a
fundamentally important institution, civil marriage.
The Court has applied similar reasoning in other areas of law as
well. For example, the Justices struck down the poll tax on an equal
access theory. Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966).
States are not constitutionally required to establish elections at all—
but if they decide to do so, voters cannot be turned away simply
because they are poor. Id. Another example concerns access to
courts. The Constitution does not require states to administer appeals
from criminal convictions—but if they decide to do so, they generally
must ensure that poor defendants are not shut out because of court
costs. Douglas v. California, 372 U.S. 353, 355-57 (1963). Neither due
process nor equal protection alone can wholly explain the result in
these cases—instead, the overlapping interests at play deserve special
consideration. See Pamela S. Karlan, Equal Protection, Due Process, and
the Stereoscopic Fourteenth Amendment, 33 M
CGEORGE L. REV. 473, 474
(2002) (proposing that looking “stereoscopically” through the lenses
of equal protection and due process can have synergistic effects).
Civil marriage is similar: because of its fundamental importance,
selective exclusion from legal marriage should be unconstitutional in
most situations.
This equal access theory captures the most important
constitutional considerations surrounding same-sex marriage. It
recognizes that access to civil marriage is partly about liberty—here,
the ability of individuals to choose a spouse and to form a legally
recognized family—and that it is partly about a type of equality—
namely, the right to be free from governmental discrimination. It
combines considerations of liberty and equality in a way that matches
the harm that many couples feel. Moreover, equal access is both
backward- and forward-looking. On the one hand, it recognizes that
civil marriage has played an important role in American history and
traditions. On the other hand, however, it challenges the way that
many officials have drawn lines around that institution—and in that way
it looks to the future, like the best of American equal protection laws.
Importantly, a decision on equal access grounds would only
concern civil marriage. Religious congregations would remain free to
determine who could marry in accordance with their own precepts.
Nor would it commit the Court to a rule that the government could
not differentiate on the basis of sexual orientation in other contexts,
2010] Same-Sex Marriage 27
such as the military’s “Don’t Ask, Don’t Tell” policy. And finally,
under our approach, states could also decide to simply stop providing
civil marriages at all—moving instead, for example, to a system of civil
unions for all couples, gay and straight. Constitutional problems arise
only when states selectively deny access to marriage.
In short, equal access offers real, practical advantages over the
arguments that have dominated earlier litigation. It stands a better
chance of success in the Ninth Circuit and in the Supreme Court—
and it better reflects our longstanding commitment to ensuring equal
access to fundamentally important government programs.
28 University of Pennsylvania Law Review [Vol. 159: 21
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REBUTTAL
Arguing Against Arguing for Marriage
Shannon Gilreath
†
In an earlier, well-written article, Professors Nelson Tebbe and
Deborah Widiss urged Gay advocates to pursue an “equal access”
argument, which they believe could be effective in securing marriage
for Gays and Lesbians. Tebbe & Widiss, supra, at 1377. In the
Opening Statement of this Debate, they reiterate their argument in
light of the recent decision in Perry v. Schwarzenegger, which declared
unconstitutional California’s ban on same-sex marriage. No. 09-2292,
2010 U.S. Dist. LEXIS 78817, at *217 (N.D. Cal. Aug. 4, 2010). Tebbe
and Widiss do not wish to quibble with Judge Walker’s conclusions in
Perry that marriage is a fundamental right and that a differentiated
system of partnership recognition for Gays and straights violates equal
protection. Instead, taking issue with the durability of Judge Walker’s
analysis on appeal, they offer an eminently practical, alternative
analysis they believe would be more likely to survive legal challenge.
Their approach is not grounded in equal protection, thus not
engaging the problematic classification-based framework at the core
of the Supreme Court’s current (and flawed) conceptualization of
equality. Nevertheless, their equal access approach advances equality
(at least by the formal definition). Their contribution to the
conversation on litigation strategy, therefore, is one to which pro-
marriage advocates might do well to listen. Surely, it fits nicely within
the current liberal discourse on same-sex marriage, assuming as it
does that marriage is normatively good, and strategizing ways to get
Gays into it.
But for me to participate in this Debate on my own terms, I have
to begin at a prior point in the discourse altogether, asking what there
is to commend marriage to Gay people. In other words, I’m asking to
what are we trying to get “equal access,” exactly. Those readers
†
Professor for the Interdisciplinary Study of Law & Professor of Women’s and
Gender Studies, Wake Forest University.
As is my convention, I capitalize Gay and Lesbian to emphasize the social and
political identities the terms connote. For the sake of brevity, unless otherwise
specified, the term “Gay” used alone is meant to be inclusive of Gay men and Lesbians.
2010] Same-Sex Marriage 29
familiar with my previous work bearing on the marriage controversy
may receive this announcement with some surprise. See SHANNON
GILREATH, SEXUAL POLITICS: THE GAY PERSON IN AMERICA TODAY 139-
40 (2006) (identifying Gay marriage as a “way to advance gay rights in
a way no other action can”). Some of the “sweetness” (for lack of a
better descriptor) of my discussion of marriage there has been
replaced by a deeper understanding of the reality of Gay people’s
lives. But I believe the following is entirely consistent with my prior
work to the extent that my criticism of the Gay rights movement’s
current obsessive focus on marriage is not a criticism of the pursuit of
equal rights.
I still believe that Gays are entitled to the same rights as straights
when it comes to tax treatment, rights of access to children, or access
to one’s partner in times of ill health or other crises. The impulse
towards these legal rights is completely understandable. This is also
not an attack on the argument that the Constitution guarantees
marriage for Gays in every sense, including, probably, the word
“marriage.” Thus, the reader should not confuse my argument here
as commensurate with the current religionist assault on Gay equality
in the name of marriage. I stand firmly against it. Shannon Gilreath,
Not a Moral Issue: Same Sex Marriage and Religious Liberty, 2010 U.
ILL. L.
REV. 205, 209-214 (2010). Nevertheless, I think the millions of dollars
(not to mention the emotional cost) invested in the ongoing fight
over the word “marriage” in California is a tragic waste. And I think
the general shift in strategy from the pursuit of equal legal rights and
status to litigation over a word is liberalism run amok.
I would also like to note that the utter practicality of the Tebbe
and Widiss analysis leaves me nonplussed. Their equal access
argument short-circuits the larger equality question. I have been
saying for some time that Gays would be better off if equal protection
were reconceptualized. Shannon Gilreath, Some Penetrating
Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy,
Dominance, and Substantive Equality Theory, 30 W
OMEN’S RTS. L. REP.
442, 459 (2009) [hereinafter Substantive Equality]. But this discussion
cannot be had if Gay advocates abandon the equality dialogue, in the
way that Tebbe and Widiss do, in favor of the path of least resistance
to marriage. This strategy privileges marriage over everything else and
discriminates against those among us who, for whatever reason, are not
rushing to the altar.
But because the Perry decision and Tebbe and Widiss focus on
marriage per se, I will bracket that discussion and concentrate instead
30 University of Pennsylvania Law Review [Vol. 159: 21
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on a Gay liberation analysis of marriage as an end goal. I elaborate
two major points about marriage and the Gay rights movement’s
pursuit of it: (1) marriage is dangerous for Gays conceptually, in its
patriarchal and heteroarchical foundations, and as a furtherance of
an alarming movement toward assimilationist erasure of Gay identity
and community; and (2) marriage is dangerous to Gays physically. As
will become clear, my ground for this critique is not liberalism, but
Gay liberationism—much influenced by the liberationist
understandings that emerged in the 1960s and 1970s, which were
linked to women’s liberation and to the early Gay movement’s
acknowledgement of the importance of destroying gender
conventions and disestablishing the family.
I.
MARRIAGE AND HETERONORMATIVITY AS ERASURE
(C
ONCEPTUAL/EXISTENTIAL VIOLENCE)
In 2004, Professor Katherine Franke presciently warned of an
increasing domestication of Gay rights in the wake of Lawrence v.
Texas, 539 U.S. 558 (2003), with a view toward the normative project
Lawrence galvanized, namely marriage. Katherine M. Franke, The
Domesticated Liberty of Lawrence v. Texas, 104 C
OLUM. L. REV. 1399,
1407-09 (2004). Like Franke, I am alarmed by Lawrence’s removal of
the Gay litigants into the heteronormative project of monogamous,
familial coupling. This follows the “like-straight” logic of the Gay
groups that intervened in the case as amici, principally asking the
Court to extend the presumptive value of heterosexual sexual
relationships to Gay sexual relationships that, according to the Gay
amici, are like straight relationships in every way. See Gilreath,
Substantive Equality, supra, at 448-58 (noting that the Lawrence Court and
Gay amici advocated an assimilationist approach in which “equality is
defined in terms of equivalence to the heteronormative standard”).
The Lawrence majority thus transformed what, for all we really
know, was sex between friends or simply no-strings-attached sex into a
relationship in the romanticized, straight tradition, which made the
sex acceptable. In other words, the domesticity of the sex involved—
indeed, the Lawrence majority’s compulsory domestication of
Lawrence and Garner—sufficiently inoculated the Gay-ness of
Lawrence and Garner’s claim to sexual liberty by replacing it with a
claim for relationship-based intimacy. What is most important here is
that by domesticating the sex in Lawrence, indeed one might say by
disappearing it, the majority accomplished the domestication and
2010] Same-Sex Marriage 31
disappearance of the Gay men involved, assimilating them into the
relationship-oriented model on which patriarchy rests. Having
established this as the normative framework for arguing for Gay rights,
Lawrence thus catalyzed the marriage craze. Lawrence dangled the bait,
signaling that marriage was the door to acceptance and legal
protection through heteronormative assimilation (while explicitly
disavowing it as such), and Gays swallowed it. Goodridge v. Department
of Public Health, 798 N.E.2d 941 (Mass. 2003), followed, and ultimately,
so did Perry.
The result of Lawrence and the marriage model has been the
transfiguration of Gay liberation into the universalities of “Gay
Rights.” The metaphysics of formal equality transfigures marriage, the
institution, into the gateway to ontic happiness and freedom. This is
paradoxical considering that the history of Gay identity is one of
institutionalization as a means to essentialize and ultimately erase us.
Our first institution was the psychiatric ward, where we, medicalized as
psychotics, were electroshocked, lobotomized, and murdered. See
generally S
HANNON GILREATH, SEXUAL IDENTITY LAW IN CONTEXT:
CASES AND MATERIALS 141-48 (2007). Then we were criminalized and
institutionalized in the prison. Having only recently emerged, we rush
to marriage for its value as an institution. This is what, according to
Judge Walker, equality demands; it is what Tebbe and Widiss say we
are entitled to access; and it is a reversal that perhaps only Foucault
could really appreciate.
Consider the politics of marriage expounded by Marriage Equality
California and Lambda:
[There] is no other way for gay people to be fully equal to non-gay
people—both in the eyes of the law, and in the eyes of the larger
community—than to participate in the same legal institution using the
same language. . . . Any alternative to marriage is not marriage.
Anything less, is less than equal!
Franke, supra, at 1415 (quoting Marriage Equality California &
Lambda Legal Defense and Education Fund, Roadmap to Equality: A
Freedom to Marry Educational Guide (2002) (no longer available
online)) (emphasis omitted). We see that, unlike the first two phases
of institutionalization, in which Gays who were demonstratively non-
normative (either because they were caught, self-identified, or could
not otherwise hide their sexual orientation) were medicalized and
criminalized, it is non-normative Gays—those who do not acquiesce in
patriarchal notions of monogamous coupling and childrearing—who
are said to fail to appreciate the good of institutionalization in the
32 University of Pennsylvania Law Review [Vol. 159: 21
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form of marriage. It is also the non-normative Gays who, by virtue of
their dissent, are pushed outside the ever-shrinking Gay political
universe. This is the political project that finds its voice in cultural
criticism from the likes of Bruce Bawer and Andrew Sullivan, see
B
RUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN
AMERICAN SOCIETY (1993); ANDREW SULLIVAN, VIRTUALLY NORMAL:
AN ARGUMENT ABOUT HOMOSEXUALITY (1995), and in law from neo-
con-liberals like William Eskridge. See W
ILLIAM N. ESKRIDGE,, THE
CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED
COMMITMENT (1996). Indeed, the politics and law of the Gay
movement have become univocal in their supplication to straight
power: Look at me! I’m like you! Having thus set the parameters of
Gay rights organizing, the leadership has narrowed the focus of
community resources nearly exclusively to marriage.
Relatedly, there is something even more disturbing about the case
for marriage reflected in its propaganda. Consider, again, the
admonition that “[there] is no other way for gay people to be fully
equal to non-gay people . . . than to participate in the same legal
institution.” Franke, supra, at 1415. This reveals marriage as a safety
strategy. In other words, marriage is a way to legitimate behaviors
otherwise illegitimate, a way of avoiding discrimination and second-
class citizenship and of achieving civic safety. If Gay marriage boils
down to a desperate attempt at assimilation in an effort to avoid the
lethal attentions of heterosexuals, can we honestly talk about Gays
entering marriage in anything resembling a condition of freedom? In
this realization, same-sex marriage—supposedly this new and game-
changing thing—looks a lot like old patriarchal marriage in which
women “consented” to marriage as a way to achieve safety in a world
that was nothing short of murderous for a woman without the “bonds
of matrimony” as her shield. When William Eskridge argues that
marriage is a way for Gays to become “civilized,” I wonder if he wants
Gays to be “civilized” in the same ways that women have been
“civilized” by marriage. E
SKRIDGE, supra, at 8-13. Institutionalization
out of desperation hardly seems much like freedom to me. Neither
does becoming heterosexualized ghosts of ourselves.
II.
MARRIAGE AND PHYSICAL VIOLENCE
It is often noted that approximately fifty percent of heterosexual
marriages end in divorce. T
HE NAT’L MARRIAGE PROJECT AT THE UNIV.
OF
VA. & THE INST. FOR AM. VALUES, THE STATE OF OUR UNIONS,
2010] Same-Sex Marriage 33
MARRIAGE IN AMERICA, 2009: MONEY & MARRIAGE 77 (2009),
http://www.virginia.edu/marriageproject/annualreports.html. It is
less frequently remarked, certainly, that the other fifty percent
probably should. But despite the existence of no-fault divorce, the
legal entanglement that is marriage is still difficult to escape.
Economic dependence (which marriage encourages on the part of
one spouse—most often the woman) and the presence of children,
coupled with legal strictures that make exit difficult, often keep bad
marriages intact. This is most alarming because, for women, the
marital home is often violent. See P
ATRICIA TJADEN & NANCY
THOENNES, U.S. DEP’T OF JUST., NCJ 181867, EXTENT, NATURE, AND
CONSEQUENCES OF INTIMATE PARTNER VIOLENCE, at iii (2000), available
at http://www.ojp.usdoj.gov/nij/pubs-sum/181867.htm (noting that
twenty-five percent of women were raped or physically assaulted by a
current or former spouse or cohabitating partner).
There is strong evidence suggesting that Gay relationships mirror
the violence of their heterosexual counterparts. Gay relationships are
violent precisely because the only model Gays have for what a
relationship should look like is the straight model. The dominant
structure of sexual inequality inherent in heterosexual marriages
bleeds over into the Gay model, so that Gay relationships reaffirm
those social conditions to the detriment of the people involved. Some
reports speculate that domestic violence among Gay men may occur at
rates greater than those of domestic violence in the straight
community. One study indicated that 23.1% of cohabiting Gay men
said they were raped or physically battered by a spouse or cohabiting
partner at some time in their lives, compared to 7.7% of men
cohabiting with opposite-sex partners. L.
KEVIN HAMBERGER & MARY
BETH PHELAN, DOMESTIC VIOLENCE SCREENING AND INTERVENTION IN
MEDICAL AND MENTAL HEALTHCARE SETTINGS 301 (2004). Another
study showed that men who have sex with men are six times more
likely to suffer an assault as an adult. GILLIAN C. MEZEY & MICHAEL B.
KING, MALE VICTIMS OF SEXUAL ASSAULT 9 (2d ed. 2000). I think
there are very important sociological reasons for this. We inevitably
strike out against the thing we are conditioned to hate. In the case of
cohabiting Gay men, that target is readily accessible in the home. It is
a form of internalized and then externalized queer bashing in the
most intimate dimensions of the Gay community itself.
Knowing what we know, do we really want to make our
relationships harder to exit than we need to? There is certainly no
reason to believe that the legal entanglements of marriage would
34 University of Pennsylvania Law Review [Vol. 159: 21
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affect battered Gays differently than they have affected battered
women. Recall that when one of Jeffery Dahmer’s victims escaped—
dazed, nearly naked, and understanding nearly no English—and
made it to police, those police returned him to Dahmer, despite the
fact that his head was obviously bleeding from Dahmer’s attempts to
drill holes in his skull. Reportedly, the officers joked that it was a
lover’s spat. Milwaukee Panel Finds Discrimination by Police, N.Y.
TIMES,
Oct. 16, 1991, at B8, available at 1991 WLNR 3035625. The obvious
violence was somehow rendered consensual in the minds of these
(ostensibly heterosexual) officers because it took place within the
parameters of an assumed relationship. Interesting how the officers
made basically the same reductionistic assumptions about Gay men that
the majority did in Lawrence.
The anticommunitarian nature of marriage puts Gays at risk of
violence from outside of our relationships, too. One of the
preconditions to violence is that the victim is usually alone and cut off
from systems of support. This is one reason that marriage has been so
dangerous for women. But the anticommunitarian nature of
marriage may be even more dangerous for Gays because, historically,
a woman has traded (sometimes violent) bondage to one man in
marriage for safety from the danger of violence from many men if she
were not married. The respect of patriarchs for one another has
generally meant some safety for women in marriage relative to the rest
of the patriarchal world. Not so for Gays. Marriage, because it
privatizes energies into the family unit, results in the dismantling of
support systems found in the community. When Gays recognize other
Gays, we often say they are “family.” The Gay liberation movement
has abandoned this communitarian conception of family in favor of
the heterosexualized, privatized, monogamous family model found in
marriage.
The marriage craze is also driven in large part by an emerging
obsession by Gays with procreation—an enterprise that further
privatizes energies. Arguably, this retreat into the nuclear family unit
leaves us even more vulnerable to outside attack, as political
consciousness recedes in favor of the romanticized family ideal.
Monogamy, definitionally, is the anticommunitarian privatization of
sexual energies, and with those energies comes the privatization of the
very sexual politics of community building. Richard Mohr, notably,
has argued that marriage ought to be reformed to allow for the often
open, communitarian nature of Gay multipartner relationships.
2010] Same-Sex Marriage 35
Richard D. Mohr, Essay, The Case for Gay Marriage, 9 NOTRE DAME J.L.
ETHICS & PUB. POL’Y 215, 233 (1995). But there seems to be no
interest on the part of the Gay leadership in pursuing this path
instead of the fetishized, heterosexual ideal. In the closed, like-
straight liberal universe, anything not approximating the (fictionally)
monogamous heterosexual union is valueless. Consequently, since
there is no special safety in Gay marriage in the same way that it is
built into the heterosexual marriage racket for the preservation of
patriarchy, marriage leaves us more vulnerable to outside violence.
CONCLUSION
I have likely taken the question presented by the “right way to
argue for the right to marry” in an unexpected and unwanted
direction. Most liberals are not interested in a discussion of marriage
that does not make that most-heterosexual of presumptions that
marriage is a priori good. I was struck recently when rereading “The
Speech of Aristophanes” from Plato’s Symposium—that antique
defense of same-sex love still widely regarded as the best exposition of
the self-actualizing and legitimating power of Gay relationships—that
marriage nowhere figured. P
LATO, THE SYMPOSIUM 22-27 (M.C.
Howatson & Frisbee C.C. Sheffield, eds., M.C. Howatson, trans.,
Cambridge Univ. Press 2008). Maybe the Gay rights movement’s
leadership and the lawyers who theorize to support them could use a
refresher course in the classics. Otherwise, I fear that when the
history of the Gay movement itself is written it will read more as
epitaph than epilogue: Once upon a time there was a Movement . . .
then there was Marriage.
36 University of Pennsylvania Law Review [Vol. 159: 21
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CLOSING STATEMENT
Nelson Tebbe and Deborah A. Widiss
On the whole, Professor Gilreath does not take issue with our
argument that, given existing law and the full range of practical
contingencies, equal access presents the best approach for securing
access to civil marriage for gay and lesbian couples. He tells pro-
marriage advocates that our proposal is worth heeding.
Instead of directly engaging with our project, he uses the occasion
of this Debate to argue that advocates for gay and lesbian rights have
erred in deciding to pursue (or go along with) a campaign for
marriage equality. Professor Gilreath claims that marriage is
unattractive conceptually because it has unavoidable heteronormative
implications, and that it is a troubling goal practically because it
brings an increased risk of trapping gay men and lesbian women in
physically abusive relationships.
Professor Gilreath is not alone in questioning whether gays and
lesbians should seek the right to marry. Rather, as Nancy Polikoff
explores in detail in a recent book, this has long been a point of
debate within the gay and lesbian community. N
ANCY D. POLIKOFF,
B
EYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES
UNDER THE
LAW 28 (2008). Some commentators and advocates, like
Professor Gilreath, have been concerned that seeking marriage is
harmful because it accepts the status quo privilege awarded to
marriage and could undermine more egalitarian aspects of gay and
lesbian relationships. Paula L. Ettelbrick, Since When Is Marriage the
Path to Liberation?, in L
ESBIAN AND GAY MARRIAGE: PRIVATE
COMMITMENTS, PUBLIC CEREMONIES 20-21 (Suzanne Sherman ed.,
1992); Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing
Gay and Lesbian Marriage Will Not “Dismantle the Legal Structure of Gender
in Every Marriage,” 79 V
A. L. REV. 1535, 1549 (1993). Other prominent
voices within the gay and lesbian community have argued, by contrast,
that permitting same-sex couples to marry is not only a necessary
component of achieving true equality and securing important
practical benefits, but would also have the separate advantage of
helping undermine gender norms within marriage more generally.
Thomas Stoddard, Why Gay People Should Seek the Right to Marry, in
L
ESBIAN AND GAY MARRIAGE, supra, at 13, 19; Nan D. Hunter, Marriage,
Law, and Gender: A Feminist Inquiry, 1 L
AW & SEXUALITY 9, 17 (1991).
Our reply is simply that we have not taken a position on the broad
2010] Same-Sex Marriage 37
question of whether marriage, either private or civil, is a worthy goal
for advocates of gay and lesbian rights. Tebbe & Widiss, supra, at 1405
n.134. We have our own reactions to Professor Gilreath’s points, of
course, but they are generally irrelevant to our equal access proposal.
We take as a given that at least some members of the gay and lesbian
community would like to marry in a civil ceremony and that they have
decided to bring litigation designed to win them that right. Our
argument addresses those individuals, the lawyers and organizations
that represent and support them, and the judges who may decide
their cases. We believe that equal access offers the best pathway to
legal success.
Professor Gilreath’s Rebuttal may have one challenging
implication for our argument, although he does not fully develop it.
If civil marriage is not an institution that is or should be important to
gay and lesbian couples, then our claim that civil marriage is
“fundamental,” as that term is used in cases within the fundamental
interest branch of equal protection law, could seem weaker. Three
responses occur to us. First, whether an institution or activity is
fundamentally important is a matter of social meaning, not individual
perspective or opinion. And as a matter of social meaning, it seems to
us that civil marriage is indeed central to American law and society.
Id. at 1415-16. Second, the Supreme Court itself has often said that
marriage is “fundamental,” albeit sometimes in passing or in dicta. See
id. at 1388-91. Finally, members of the gay and lesbian community
who are advocating for equal access to civil marriage have imbued
their own arguments with the force of passionate conviction. One
need only recall the moving scenes that have unfolded on courthouse
steps or outside legislative chambers in states where couples have won
official recognition of their commitment.
We do disagree with a couple of minor points that Professor
Gilreath makes about our proposal. First, we do not believe that we
have abandoned equality arguments. As we make clear in our print
article, one of the most attractive features of equal access is that it
combines liberty concerns with a strong commitment to
evenhandedness. Id. at 1421-24. Moreover, we do not think our
argument privileges marriage—it simply offers a strong argument for
couples that wish to pursue access to civil marriage, possibly in
combination with other goals that may be given higher priority. In
fact, one benefit of our approach is that a state could decide to
abolish civil marriage for all couples, gay and straight, without
violating constitutional principles. Id. at 1405-06.
38 University of Pennsylvania Law Review [Vol. 159: 21
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A day may come when advocates for gay and lesbian rights
abandon the fight for marriage equality and move on to other goals.
If that happens, our argument would lose some of its relevance, a
development that would cause us no distress. Until that time,
however, we believe that our equal access approach has a valuable role
to play in the ongoing debate.
2010] Same-Sex Marriage 39
CLOSING STATEMENT
Shannon Gilreath
As Professors Tebbe and Widiss emphasize, I do not have a
technical quarrel with their equal access strategy for litigating
marriage. They are, I suspect, right in suggesting that their proposal
would make it easier for judges to decide in favor of Gay marriage (or
to uphold it on appeal) than would asking them to engage equal
protection squarely. In my experience, if you give judges an
opportunity to avoid making a legal decision based on equality—or the
lack of it—they will take it, especially when Gay people are concerned.
It is this overwhelming conceptual flaw in Tebbe and Widiss’s
argument that makes it unnecessary for me to tinker with its
technicalities. Given the potential result of the argument’s
application, its mechanics don’t much concern me. What does
concern me is what we might get if Tebbe and Widiss were to be
successful: marriage in its unaltered heteronormativity. Tebbe and
Widiss evidently consider my concerns in this regard to be something
other than “directly engaging with [their] project.” But any legal
proposal that purports to advance a Gay cause—like the quest for
marriage—is an invitation to think about the role the law plays in the
future of Gay rights. Thus, I think it is important to ask whether the
result Tebbe and Widiss say they can produce via “equal access”—that
is, access to marriage-- is a good thing for Gay liberation.
Tebbe and Widiss say they take no position on the good or ill of
marriage; rather they offer a strategy of access for those who want it.
In this announcement they both miss my point and inadvertently
reinforce it. The Gay movement’s posture of not evaluating critically
the meaning of marriage as a social institution and yet strategizing to
access it is what I think makes the movement’s emphasis on marriage
so frightening.* Demanding that we engage in the kind of critical
inquiry about marriage that I sketch in my Rebuttal is a big part of the
* Tebbe and Widiss point out that some such evaluation has taken place in the
context of the debate over same-sex marriage, generally among academics. I agree
that the union of two people of the same sex, for whom, from the straight perspective,
no gender inequity could be presumed, might do something to destabilize gender.
I’m all for that. But I think the costs of marriage, as explained in my Rebuttal,
outweigh the likely benefits. And, anyway, the same destabilizing effects on gender in
coupling could be had via Gays coupling in visible ways that do not insist upon
patriarchal constructions or labels. Perhaps even greater destabilization could be
achieved in this way.
40 University of Pennsylvania Law Review [Vol. 159: 21
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social and legal project that is Gay liberation. Gay liberation, by
definition, is the effort to empower Gay people on Gay people’s terms.
Thus a demand for access to marriage (such as the demand Tebbe
and Widiss make) without a concomitant demand for change is of
limited utility—and indeed may be dangerous—to Gay liberation.
Straight society’s existing attitudes about what constitutes
personhood, including marriage as a precondition to self-fulfillment,
have never encompassed Gay experience. We have never had access
to their definitions on our terms. Seeking access to marriage is the
quintessence of seeking affirmation by straight people on their terms.
And it is important for Gay people—after all, this is our legal and
political struggle—to remember that Gay liberation never aspired to
this kind of access. If the movement, its leadership, and its lawyers
have changed the mission in this very costly way, I think they owe it to
the rest of us to explain why they think access to marriage is a good
idea—not just how they plan on getting it.
In closing, let me clarify my criticisms of the equal access
argument that Tebbe and Widiss believe are direct but based on
misapprehensions. In their Closing Statement, Tebbe and Widiss say
that their proposal has not “abandoned equality arguments.” Indeed,
the professors explain that, “one of the most attractive features of
equal access is that it combines liberty arguments with a strong
commitment to evenhandedness.” But evenhandedness is not
equality, except by the most formal definition. Access to marriage
advances equality to a degree, but it does not engage the more
meaningful, substantive question of equality in terms of dominance
and caste. See Gilreath, Substantive Equality, supra, at 460 (proposing a
substantive equality approach in which courts ask “whether the law
promoted the dominance of one group with the consequence of
subordination of the target group”).
Tebbe and Widdis confessedly write for the many Gay rights
advocates who seem to believe that marriage is a panacea. It isn’t. In
fact, granting access to marriage based on arguments other than
substantive equality may create a roadblock to future legal and social
gains. If we get marriage, the likely result will be that straight people
will say: “Look what we gave you. What more do you want?” My fear
is that the Gay leadership, having demonstrated a myopic obsession
with marriage at the expense of nearly everything else, might respond:
“Very little.” In any event, the refusal to engage class-based equality
theory at every opportunity now may haunt us if we decide to press a
2010] Same-Sex Marriage 41
more expansive rights campaign in the future.
Tebbe and Widiss’s argument also privileges marriage without
regard to equality because it purports to craft a way of accessing
marriage without asking judges (and the general public) to engage
directly the class- and caste-based theory of straight dominance or the
reality of Gay life lived under this dominance. Thus, those Gays who
are most likely to benefit from an equal access argument are the few
Gays who already live in relative social and legal security. Litigating in
order to gain access to a word—“marriage” as a term—as opposed to
the bundle of rights associated with state subsidized coupling (which
is what was at stake in the California cases since Gay couples already
had the rights) is the indulgence of litigants who have already escaped
the caste system to some degree. See In Re Marriage Cases, 183 P.3d
384, 397-98 (Cal. 2008) superseded by constitutional amendment, C
AL.
CONST. art 1, § 7.5 (noting that California’s domestic partnership
legislation “affords . . . virtually all of the same substantive legal
benefits and privileges . . . that California law affords to . . . a married
couple”). A focus on accessing marriage in this way means that one
takes public, straight acknowledgment of a relationship between Gay
people as an affirmation, not a threat; and that worldview classifies
one, in Gay terms, as part of the privileged few. The politics that
benefits from this type of litigation is thus the politics of those at the
top—those who can afford to fantasize about marriage per se and who
can afford to devise legal stratagems to get marriage at any and all cost.
Indeed, they may feel that such stratagems are highly desirable. I don’t.
No movement for real social change can be successful if it is not
based on empowering the most powerless. I’m worried about the
many Gay Americans who cannot yet afford to daydream about
marriage and its romance because they can’t even be out on an
individual basis—let alone as a couple—because they fear reprisal at
work, worry about being rejected by their families, or dread being
stalked by the law. For these Gays, any legal argument that purports
to show the route to victory without squarely confronting the
monstrous legal caste system in this country (a system largely
buttressed by formal conceptions of equality and based on class
distinctions justified as such) is, in a word, dangerous. An argument
that gives conservative judges (usually code-worded as “moderates”)
an opportunity to afford some few Gays some rights piecemeal may
well be taken by these same judges to the long-term detriment of Gays
who have less security and who generally ask for less in terms of equal
rights. Tebbe and Widiss’s argument, admittedly, provides judges with
42 University of Pennsylvania Law Review [Vol. 159: 21
PENNumbra
just such an opportunity; indeed, they believe this is one of their
argument’s greatest strengths.
In sum, Tebbe and Widiss’s equal access strategy is simply an
unsettling continuation of the Gay movement’s rush to marriage over
the increasingly marginalized warnings of Gay liberationists.** See
generally Ettelbrick, supra. In keeping with the endgame of this
heteronormative project, equal access gives courts a way to rule in
favor of marriage without facing equality in any material way. Thus,
while, as I said, some Gay advocates might find it fruitful to listen to
Tebbe and Widiss, I hope they won’t.
Preferred Citation: Nelson Tebbe, Deborah Widiss & Shannon
Gilreath, Debate, The Argument for Same-Sex Marriage, 159 U.
PA. L. REV.
PENNUMBRA 21 (2010), http://www.pennumbra.com/
debates/pdfs/Marriage.pdf.
** As for the unlikely outcome that Tebbe and Widiss say their scholarship
supports—that states could abolish marriage—I certainly wouldn’t get in the way of
trying.
