The Supreme Court’s recent decisions concerning same-sex marriage have been heavily touted as victories for the LGBT community. The material benefits that accompany marriage and the symbolic weight that attaches to it make the widespread jubilation perfectly understandable. But who really won here? Do the benefits that accompany marriage respond to the deepest needs of transgender folk? Is access to marriage equally important to LGBT people across racial, economic, gender, and generational lines? Given an ever-shrinking economy and the assault on “big government,” do we need to develop more inventive ways to secure and distribute resources? And can we, in good conscience, use the language of victory given the Court’s decisions concerning the Voting Rights Act, criminal law, Title VII, Native American sovereignty, and affirmative action?
Upon an initial read, U.S. v. Windsor, the Defense of Marriage Act (DOMA) case, seems to give LGBT people much reason to rejoice: our relationships are recognized as respectable and our enemies as nefarious. Writing for the majority, Justice Kennedy concludes with these rousing and heady words:
The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage … DOMA … imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper … The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
Consistent with the tenor of the opinion as a whole, Kennedy finishes by using the language of dignity to describe same-sex marriage and of injury to characterize DOMA. But Kennedy’s opinion never states that LGBT persons, as such, are worthy of respect. He never uses the word “gay” or “lesbian,” and “homosexual” appears only when he quotes DOMA’s legislative history. The injured class, according to the Court, consists solely of those persons in same-sex marriages recognized as legally valid under state law. This class is far from identical to the class “LGBT persons.” It does not include those presumably equally worthy relationships in the 37 jurisdictions that fail to recognize same-sex marriage. Nor does it include those relational configurations that exceed what is codified as a marriage. Or people who are single. Or those who have principled objections to marrying. It also suggests, perhaps most problematically, that the dignity of LGBT persons is a legal question to be resolved by the state. And, lest we forget, it does nothing—even in those states that recognize same-sex marriage—to assist couples seeking religious sanction from hostile faith communities. While the Court neither can nor should mandate rules for such communities, given the mixed legal and religious significance of marriage, we must remember that the law can only ever offer limited victories in this arena.
Far from a victory for LGBT people, Windsor is a victory for marriage. A genuinely moving moment following the announcement of the Court’s decision captures this point perfectly. As part of his reaction to the rulings, Paul Katami, one of the plaintiffs in the Proposition 8 case, asked the man he loves, Jeff Zarrillo, to marry him. Just prior to popping this question, Katami proclaimed, “We want to get married because that’s the natural next step in our relationship. We want to join the institution of marriage … to strengthen it and to live up to its ideals.” Katami imagines a teleology to his relationship—a natural teleology even—culminating in marriage: an institution that exists prior to and independently from his relationship, that includes normative strictures to which he enthusiastically pledges fealty, that will provide his love its fullest opportunity for meaning and expression. Just as the Court makes marriage the linchpin for recognition of dignity, Katami accords it a similar respect and then gives the Court respect for granting him access to an institution that confers dignity. This adoration for marriage as the end goal for all relationships—gay and straight—leaves no breathing room for feminist, anti-assimilationist, or queer critiques of the institution.
In this way and for these reasons, the Windsor decision serves as an x-ray of the marriage equality movement. It reveals that the struggle for marriage equality is not about equality precisely because it is also about marriage. Marriage is, in the most basic sense, a hierarchical, evaluative classification that distinguishes between relational configurations and people: it grants some people in some relationships material benefits, practical advantages, and cultural capital by distinguishing them from other people and other relationships. (Although there are, of course, meaningful distinctions between state-sanctioned and religiously recognized marriages, on this question of drawing distinctions, they are identical.) However same-sex couples may transform the institution of marriage, assuming that they do or can, they are unlikely to eliminate this feature. In fact, the only reason some LGBT people are invested in gaining access to marriage is precisely because it has this dimension. If marriage no longer provided access to resources and respect, it would lose its luster. Of course, it makes sense to try to gain access to institutional sites from which power and prestige flow. But expanding access to an exclusionary institution, a move that can only serve to underscore its value and worth—thereby reinforcing the desire to maintain its existence, esteem, and exclusiveness—in both the participants’ minds and the public’s conception, should not be hailed as a victory for equality, or liberty, or justice.
As much as the Windsor Court exhibited concern for the dignity afforded marriage and married people, it also worried about DOMA’s injury to state sovereignty. DOMA was found to be constitutionally unsound, in large part, because, as a federal statute, it created a distinction among married couples where state law does not. It was struck down both because it demeans certain marriages and because it tramples on New York’s prerogative to define marriage and assign dignity to same-sex unions. It remains unclear, in Windsor, which injury matters more. Unfortunately, the Court’s evisceration of the Voting Rights Act in Shelby County v. Holder resolves the question. In Shelby County, when assessing whether Congress had the power to continue the extraordinary—and, by all accounts, extraordinarily successful—monitoring of electoral processes, in jurisdictions located in both the North and the South, to eradicate the effects of racial discrimination in voting, where there had been a history of local regulations and practices suppressing the meaningfulness of certain people’s votes, the Court—ironically and disturbingly—returned frequently to the respect and dignity that should be accorded state governments. The beneficiaries of Windsor must never forget that a central feature of their favorable ruling was also a significant element in the deeply troubling Shelby County decision.
Given that legislative action at the state level is key to the expansion of marriage rights in the wake of Windsor, proponents of marriage equality should be deeply concerned about the effects of Shelby County on the integrity of the electoral process. Moreover, in furtherance of coalition and solidarity between LGBT advocacy and civil rights organizations, there must be a united front in demanding the restoration of the Voting Rights Act. At least this is what a joint statement from twenty LGBT organizations, including the Human Rights Campaign and the Gay & Lesbian Advocates & Defenders, major players in the marriage equality cases, suggested. But the language of coalition and solidarity fails to overcome a basic short-sightedness: it fails to contemplate the existence of LGBT people of color, of targets of voting disenfranchisement and suppression among the population served by LGBT organizations, of meaningful access to the ballot box as a concern for LGBT politics. It should be noted that the organizations that signed this statement, dismayed by the Shelby County decision after the fact, neither filed nor joined “friend of the Court” briefs in the case.
Those concerned about the situation of LGBT people must be mindful that the Court in its decisions this term displayed, once again, a remarkably short historical memory and an almost complete inability to think about systemic oppression. The Court imagines the relationship between government and citizen as one between an institution that provides opportunities and a person who chooses to take advantage of them. Institutional pressures, cultural impediments, resource limitations, and generationally accumulated disadvantages beyond the grasp and control of the individual simply do not show up as relevant or significant factors in the Court’s analysis of inequities and their remedies. By so closely associating marriage with justice, LGBT people conform fully to the Court’s vision of the relationship between government and citizen rather than making more trenchant critiques about the way in which marriage itself is part of a systemically inequitable distribution of power and privilege.
Windsor, then, helps explain why the movable middle has moved so quickly on the question of marriage equality. By seeking access to marriage, LGBT people make themselves familiar. They exhibit admiration of and desire for practices, habits, and states of being already afforded respect and dignity by the dominant culture. They organize themselves in dyadic pairs, groom themselves to be parents, and weave together more strongly the threads of the social fabric. By seeking access to marriage, LGBT people do not compel the dominant culture to confront the value and workability of a wider range of relational configurations, communal practices, erotic pleasures, and emotional intimacies. They cease to be marked primarily as sexual beings, as champions of erotic experimentation, turning their back on significant strains of feminist and radical politics that inform(ed) their movements. By seeking access to marriage, LGBT people keep familiar conceptions of romance, family, fidelity, life, and meaning firmly in place, thereby voluntarily quelling much of the anxiety their very existence generates. By seeking access to marriage, LGBT people make themselves fully legible by seeking to conform themselves to the categories provided by church and state—categories that have never contemplated the existence of LGBT people.
The Supreme Court’s recent decisions concerning same-sex marriage have been heavily touted as victories for the LGBT community. But if they are, instead, more readily understood as victories for the dignity of marriage and the sovereignty of states, who wins?
Kent L. Brintnall is an associate professor in the Department of Religious Studies and an affiliate faculty member in the Women’s & Gender Studies Program at the University of North Carolina at Charlotte. He is the author of Ecce Homo: The Male-Body-in-Pain as Redemptive Figure. Dr. Brintnall worked as a staff attorney for the Ninth Circuit Court of Appeals in San Francisco where he also taught constitutional law.