Queer Family Values: Debunking the Myth of the Nuclear Family, by Lehr, Valerie
- ISBN: 9781566396844 | 1566396840
- Cover: Paperback
- Copyright: 5/1/1999
Rights, Freedom, and the Limits of Inclusion
Two strands of political theorizing have been common elements in gay theory and politics. One is identity-based, liberationist politics. The other--gay rights in relation to family--is the focus of this chapter. Gay and lesbian rights organizations such as the Human Rights Campaign (HRC) and the National Gay and Lesbian Task Force (NGLTF) privilege fighting for rights over working for a more general transformation of both discourse and institutional structures. The liberal democratic discourse dominant in U.S. politics heavily influences these organizations. This political theory also informs their discussion of marriage rights. Within political theory, however, there are significant critiques of liberalism, in particular critiques arguing that liberal solutions are inadequate for addressing the complex problems that the United States and other post-industrial democracies face as nations. Central to my critique is the argument that the extension of rights depoliticizes issues that need to be subject to public debate and discussion. To foreclose such controversies through the extension of rights is not to resolve them; it is to deny the full significance of such questions for society by containing debate. The extension of marriage and family rights to gays and lesbians would serve to foreclose serious questioning of the values embedded within current understandings of marriage and family. Such foreclosure would mean that the extension of rights will have taken away the possibility of enhancing freedom.
The relationship between rights and freedom, assumed so often within American political discourse, keeps us from asking what "freedom" means. We assume that it means individuals have rights in order to allow them to act on their own desires free from outside interference. As feminist political theorist Wendy Brown (1995) discusses, this formulation of freedom is not the only one that has been present in American politics, but it has gained a significant renaissance since the mid 1970s. It is this understanding of freedom and the role of rights that the Right embraced. As a result, a political discourse that defines freedom as free enterprise and that understands individuals as rightly having the power to make decisions for themselves, without the interference of a state mandating social goods such as equality or ending oppression, now dominates. Brown suggests that although this liberal understanding of freedom assumes that we are free when we do not feel power operating, we need to understand that power is always operating. Total freedom is not a feasible goal, but as citizens we can engage in struggles with the potential to decrease domination and increase freedom.
The Right is not the only segment of society to believe that decreased social regulation is equivalent to increased freedom. Many lesbian and gay leaders and civil rights organizations suggest that the ideal rhetorical justification for extending marriage rights is one that makes clear the denial of individual choice currently existing for lesbians and gays. The Human Rights Campaign makes this connection explicit in a publication that advocates marriage rights. In the organization's "marriage organizing booklet," produced to help lesbian and gay activists counter antimarriage rights arguments, the organization suggests that those who argue for marriage should construct their argument using the following key terms: "basic human right," "personal decision," and "individuals, not government, should decide" (Birch 1997). Together these three terms indicate that the Human Rights Campaign believes people can be persuaded that marriage rights should be extended to gays and lesbians because these are a basic human right, and that without this right individuals cannot exercise choice because the government has infringed upon their realm of personal decision making.
When proponents of gay marriage argue that marriage is a basic human right, the denial of which means that an individual cannot really be free, they are drawing on an understanding of marriage common in our society. William Eskridge argues that the marital family is critical for civilizing humans--a task, he states, that would be more successful with the extension of marriage rights to gays and lesbians. Gays and lesbians would be civilized because we would build more stable (monogamous) partnerships with legal recognition. At the same time, the institution of marriage would be civilized because gays and lesbians would create more egalitarian relationships, thus providing models for heterosexuals (1996, 118). Eskridge builds his understanding of marriage as a civilizing institution on the assumption that marriage is so intrinsic to human desire that it is a basic human right. In making this argument, Eskridge draws on the dominant understanding of marriage within American society and the law. He approvingly quotes Justice Douglas's opinion in Griswold v. Connecticut :
We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together, for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. (1996, 126)
Marriage, according to Douglas and Eskridge, is such a basic component of human relationships that to deny someone the ability to marry is to deny their freedom. Chief Justice Earl Warren's majority opinion in Loving v. Virginia expressed this connection between choice and freedom in relation to marriage:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so insupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. (qtd. in Rubenstein 1993, 396)
Andrew Sullivan, in staking out what he identifies as a liberal/conservative position on gay equality, asserts that rights such as marriage--that is, rights that he believes do not assert causes, political faiths, or social projects--are all that liberal democratic society can legitimately grant. When we demand more, such as antidiscrimination policies or right-to-rent legislation, we have crossed the boundary between public life and civil society that defines liberal democracies. To Sullivan, crossing this boundary limits the ability that people have to choose. The position that Sullivan sets forth draws on and attempts to reinforce a traditional liberal political perspective, one that understands civil society (which includes the economic realm) as the domain of freedom because it is a domain in which individuals are not interfered with by the state. "There is a line," he tells us, "over which liberal citizens will not cross; he or she refuses to see the state as a way to inculcate virtue or to promote one way of living over another; the state has no role in promoting understanding, or compassion, or tolerance, as opposed to toleration, or indeed to celebrate one set of `values' over another; and where the state and the individual conflict, the liberal will almost always side with the individual" (1996, 139). The idea that individuals should be privileged when their choices conflict with the values of others is also present in HRC's language. HRC found in focus group research that this language is most likely to appeal to average Americans. It should not be surprising that this formulation is most likely to persuade the American public; it is very much the language of liberalism. Yet putting the advocacy of marriage into this language--a language used to argue for many things, including some of the Right's primary political goals--should serve as a warning that perhaps we need to examine in greater depth the issues involved. The following questions can guide our exploration of these issues: Is marriage really such a basic human right that entering into the institution of marriage enhances human freedom? What does "choice" mean in liberal democracy if we can choose to marry but possible employers can limit our choice in employment by legal discrimination? How is choice related to freedom?
Liberalism and Individual Freedom
Liberals assert that individuals are most appropriately able to define for themselves the meaning of the "good," and that government works best when it removes obstacles from the path of those who wish to further their own interests, as long as they do not violate the basic rights of others. The distinction between the state and civil society (the realm in which people define and act on their own definitions of the good) is basic to liberalism. Within this framework, as both Andrew Sullivan and William Eskridge argue, it may well be difficult to defend a position that denies gays and lesbians marriage rights. As adults, if we wish to define our "good" in terms of sexual relationships with people of the same sex, there either must be a compelling argument about how this choice harms others, or we should have the right to marry. Yet large numbers of U.S. citizens continue to believe that extending marriage rights to gays and lesbians is wrong. This either means that the clear and rational connection between gay marriage and individual freedom has not penetrated the consciousness of average citizens, or it means that the role that family plays in society is more complex than proponents of liberal ideology care to admit. If, as some critics of liberalism assert, liberalism requires interference based on some notion of the good, then perhaps we can understand this hostility as a product of politics and culture. If this is the case, rational argument about human rights is unlikely to convince citizens that granting gays and lesbians the right to marry enhances freedom. Further, if marriage is not really a road to freedom, even if gays achieve the right to marry, we might have gained something that is less desirable than we believe.
The understanding of both civil society and the individual within it that Sullivan relates has been present in liberalism since its formulation in the political theory of John Locke. It is also an understanding of civil society and the individual within it that has been seen as faulty by a number of modern political theorists. They argue that the "state of nature" construction that liberal theorists from the seventeenth century to the present have used to develop their arguments about the appropriate role of government masks the extent to which liberal individuals are the product of assumptions asserted as natural or obvious by the theorists. For example, Locke portrays individuals in the state of nature, at least if they own property, as rational and industrious men whose primary aim is to increase their wealth through their labor (see Macpherson 1962). They are also married, having naturally recognized that a male-dominated family is the best way to maximize reason and industry. From these initial, highly questionable assumptions, Locke is able to derive the need for government to uphold the rights of the rational from the interference of the irrational, that is, those who do not own property. In significant ways, the Lockean individual did not define the good at all; Locke assumed that a significant part of the good, including the private relationships that the individual forms and the way that he will interact with his children, was found by the individual through reason.
Feminist critics such as Susan Moller Okin (1989) and Carole Pateman (1988) develop the critique of liberalism in ways that are important for lesbian and gay politics and theory. They begin by noting that the liberal individual is inherently male with his basic necessities met within a male-dominated family. The ability to be a rights-bearing individual rests on a division between public life and private life (a division specifically invoked by Sullivan to support his argument for marriage rights) that continues to disadvantage women to the present. Joan Tronto (1993) extends this analysis by noticing that the disadvantage is present in the lives of all of those who have primary responsibility for providing care. This critique of liberalism is important for a gay and lesbian analysis because it begins to make clear the extent to which the citizen who is granted rights, including marriage rights, is assumed to have a particular set of values and responsibilities, ones that may not be compatible with forming the families that we choose.
To display the falsity of the "natural" nuclear family, Michelle Barrett explored the many different forms that family takes in human societies by examining anthropological and historical works. "At an ideological level," she wrote, "the bourgeoisie has certainly secured a hegemonic definition of family life: as `naturally' based on close kinship, as properly organized through a male breadwinner with financially dependent wife and children, and as a haven of privacy beyond the realm of commerce and industry" (1980, 204). If we reject the ideological assertion that the state is merely protecting natural relationships, then we need to ask whose interests the family-household system embedded in twentieth-century American liberalism serves. Collier, Rosaldo, and Yanagisako argue that the creation and maintenance of privatized family units is connected to the role that the ideology of the family plays in capitalism: "We discover that what gives shape to much of our conception of The Family is its symbolic opposition to work and business, in other words to capitalism. For it is in the market, where we sell our labor and negotiate contract relations of business, that we associate with competitive, temporary, contingent relations that must be buttressed by law and legal sanctions" (1982, 34). The family, according to the dominant ideology, is a realm in which we build permanent and caring relations, rather than fleeting and competitive relations. These relations will sustain those who labor in the harsh public world of the market. Because these private relations are nurturing, it is necessary to keep the impersonal force of the state out of family relations (1982, 35). Yet the state--which has the power to set the terms for marriage contracts, for child custody, and for privacy--is never outside of the family.
The ability to create a privatized household depends on financial resources that are unavailable to many, particularly families that do not have a white, male wage-earner. Thus, one initial observation might be that the privatized units created by marriage best fulfill the needs and desires of a particular group of people. Those who cannot satisfy the material prerequisites of family life do not create the same kind of privatized units as those of the more economically privileged. Patricia Hill Collins notes, "Privatization is less likely when survival depends on rapid circulation of limited resources. African-American families exhibit these fluid public/private boundaries because racial oppression has impoverished disproportionate numbers of Black families" (1990, 47). Ellen Lewin (1993) points out that for single mothers, both lesbian and heterosexual, having support networks of both one's biological family and other women and their children to provide loans, babysitting, and emotional support significantly reduces the strain that they inevitably face. The development and perpetuation of wider connections can also leave people vulnerable since, as Eli Zaretsky points out, state policies attempt to maintain families as separate, independent units, not as extended systems: "My argument is that the family has been preserved [by the welfare state] as an economically private unit and that most of the normative aspects of state policy are based on that" (1982, 195). Carol Stack (1974) demonstrates that many poor families only survive with such sharing, even though an individual who shares her/his state benefits risks losing them, as well as being prosecuted for fraud. Further, the assumption that one only requires benefits for those in their nuclear family also causes problems for people attempting to climb the class ladder, a problem that Wilkerson (1995) argues has had a particularly strong impact on black middle-class people, since extended families continue to rely on their economic resources.
Different theorists have posited a number of explanations for why law and social policy privilege private heterosexual economic units supported (at least primarily) by a male wage/salary. One theory put forth by feminists is that a capitalist form of patriarchy developed to maintain male power and privilege after the decline of the formally patriarchal order. Even if individual men lacked power in the capitalist, public world, they would still have power in the private world of the family. Other explanations for this particular form of family include the need to ensure paternity (at least for property owners) so that inheritance follows paternal lines; the capitalist need for consumer units, units that are important for capitalism because they create markets for the goods produced (Barrett 1980); the importance of dependent wives and children on male workers for minimizing the resistance of labor; the importance of nuclear family dynamics for creating the psychological predispositions necessary for capitalism and liberalism; the support that the family-household ideology provides for an understanding of masculinity that is critical for producing male laborers and male citizens; and the creation of a reserve labor pool of women workers through the formation of a dual labor market. In each of these arguments, the family-household system exists and works to reinforce a sex/gender system embedded in the family and the economic realm. Yet the social functions served by the family-household system are denied through the ideological assertion that this way of life is natural.
Some critics of liberalism, such as Michael Sandel (1982) and Charles Taylor (1985), argue that the abstract individualism of liberalism masks the extent to which human beings define their goals in interaction with and as a result of social norms. In the process, liberalism denies to people the ability to construct themselves as actors. That is, if we define the good and our sense of self in relation to whatever desires we happen to have, we do not have the ability to step back and ask if we are the kind of person we would like to be. To ask this question requires that we understand ourselves as embedded within the communities of which we are a part, or that we understand our identity as "defined to some extent by the communities of which we are a part" (Sandel 1982,150). How we understand ourselves, including our desires and how we define the good, is a complex interplay of community and self, with the state, the economic system, and resistance movements each playing an important role in conditioning how we understand ourselves and our desires. If we accept social structures, such as monogamous marriage, as simply natural, we lose the opportunity to engage in the processes of self-reflection and self-construction. That is, we lose the possibility of enhancing our freedom.
Michel Foucault's work helps us to understand further the extent to which the concept of "normalcy" constructs our self-definition. The extension of liberal freedom, he argues, occurred with the rise of disciplinary power, by which he means the ability, largely but not exclusively, of bureaucratized institutions to define and control in order to construct the normal. To Foucault, even if overt domination and physical coercion have decreased in comparison to pre-liberal society, we do not have greater freedom:
Historically the process by which the bourgeoisie became in the course of the eighteenth century the politically dominant class was masked by the establishment of an explicit and formally egalitarian juridical framework, made possible by the organization of a parliamentary, representative regime. But the development and generalization of disciplinary mechanisms constituted the other, dark side of these processes. The general juridical form that guaranteed a system of rights that were egalitarian in principle was supported by these tiny, everyday, physical mechanisms, by all those systems of micropower that are essentially non-egalitarian and asymmetrical that we call the disciplines. (1995, 222)
The power to define normality and to control people is exerted in multiple ways and within multiple institutional structures, including those that encourage people to enter into a specific form of family by constructing other alternatives as abnormal or deviant. What is most critical about this power is that people rarely feel it as the exercise of power. Often, the exertion of power takes place through professionals, that is through the power of "experts" who define and enforce that which is natural and normal. From this, we can conclude that in order to understand "family" in the United States, we not only need to examine universal rights and the law, but also the disciplinary practices that are the necessary other side of a legal system that promises individual choice and equality.
Liberalism's formal guarantee of equality rests on a system of classification that defines and maintains status. People feel that liberal freedom and equality are positive and progressive because we contrast current society with the fixed status relationships of feudal society. One important component of disciplinary practices is that they work not only to produce people who are "normal," but also people who will fill particular roles within society. That is, even if we are no longer born to a particular and fixed place within the social system, disciplinary practices can still work to produce individuals formed through status differentials. "The disciplines," Foucault notes, "should be regarded as a sort of counter-law. They have the precise role of introducing insuperable asymmetries and excluding reciprocities" (1995, 222). It is individuals with differing power who negotiate contracts. Further, Foucault tells us, the ability to negotiate contracts rests on preconstituted inequalities (1995:169, 223). If freedom means only that we can choose to engage in contracts, we are free only to a very limited extent.
In this context, we can explore the role of marriage and family. Although the contractually agreed-to marriages of today may seem like a significant advance over the pre-arranged, clearly economic arrangements made for many men and women in the past, this understanding presupposes that monogamous, dyadic sexual relationships should have higher status and receive greater benefits than other forms of relationships. This superiority is asserted often through a variety of disciplinary mechanisms, including mental health experts, the media, schools, religious institutions, and the law. In this sense, marriage itself can--and should--be seen as a disciplinary system, one that promotes social goals, such as creating households of consumers and promoting a dualwage structure, rather than as a natural institution that enhances individual freedom.
Marriage and the State
Liberalism, as I have noted, developed in response to patriarchal society, where fixed social relations existed within status relationships and one's place in the community was central to identity. John Gillis's discussion of the change in marriage from "ritual to romance," a change that took place in the nineteenth century, is suggestive of the transformation that took place for persons. Marriage, he writes, changed from a ritual designed to secure a place for the married couple within the community to a private, contractual agreement: "The public rites of the old betrothal were replaced by the private engagement, witnessed only by the family. The ring lost its magical properties and became a mere symbol; the binding power now invested in law of church and state, witnessed to by contracts drawn up in the lawyer's office" (1988, 103). The full import of this change is apparent when we observe that ritual can be an important mechanism for managing emotion; in the case of marriage, Gillis specifically mentions the importance of playing particular roles for managing the envy of others attracted to either the bride or the groom. The decreased meaning of the ritual and increased meaning of the marriage contract indicate the loss of concern with managing emotions in order to preserve a sense of Community; instead, respect for private, contractual relationships became central. Yet, as Pateman argues, these contractual relationships are dependent upon trust and commitment, values that are expected to develop and be sustained in the private sphere. "Ethical life," she writes, "depends upon marriage because marriage is the origin of the family. In the family, children learn, and adults are continually reminded of, what it means to be member of a small association and so are prepared--or, rather, men are prepared--for the universal public sphere of civil society and the state" (1988, 176). The ability of private life to perform this task requires that people enter into marriage not as individuals, but as men and women, each of whom will play a particular role in constituting the emotional world that makes public contracts possible.
In the fictional state of nature used by liberal theorists to articulate the basis of human rights and freedom, the concern with managing emotion as one enters a community disappeared because emotion in general is missing from their discussions. In justifying the move away from patriarchal power, these theorists portrayed even family relationships as the outcome of rational calculation and choice. Locke tells us that it is not a natural relationship that binds the son to the father. Instead, reasoned choice makes him committed to his father: the son knows that his father can choose whether or not to leave him an inheritance (1963 , secs. 72-73). Similarly, the husband and wife choose to form a marital relationship because reason suggests that this is the best way to satisfy desire and raise children. Ideologically, the language of freedom and individual choice replaced that of duty and status. At the same time, even within the rhetoric of liberal political thought, choices about family relationships are not free of material considerations, even if a language of freedom justifies these material decisions. Pateman helps us to consider the limits of the marriage contract and, in particular, warns that although we should be skeptical of the extent to which liberalism increased the freedom of most people, we should be particularly skeptical in relation to women. We can best understand the need for such skepticism by examining how sexual status is maintained in the marriage contract.
Pateman's analysis, like Foucault's, indicates that we should reconsider the ideological assertion of freedom and choice in relation to marriage (as well as other facets of life). She reads some of the grounding texts of liberalism in new ways which indicate that the "individual" of liberal society is a person who is male and generally not free, other than in his relations with women. Within this social organization, women remain subordinate and defined primarily in terms of a status relationship. The ability to freely enter into contracts, Pateman explains, is not as positive even for free, individual men as the ideology asserts; the concept of the contract hides the continued power, inequality, and lack of freedom present in society. "If contract is not to be a vain endeavor, the means must be available to ensure that the service contracted for is faithfully performed. The party who demands the service (the employer, the husband, the client) must have the right to command that a body is put to use, or access to the body is made available, in the requisite manner. Contracts about property in the person must always create obedience and constitute a man as a civil master" (1988, 231). Thus, when men contract the use of their services, they are contracting power over their bodies to people with the means to ensure that their bodies are used as the contractor demands. Because disciplinary practices so effectively construct workers, power remains invisible most of the time. It is, as a result, generally unnecessary to employ the coercive power that underlies labor contract. But, coercive power does come to the surface when organized workers challenge the power of their employers.
For women, however, contracting has even more negative consequences. As contracts replaced status, women were only able to enter into the marriage contract--a contract that contained, and continues to contain, some rather odd provisions compared to other contracts. Its content is codified into law, rather than negotiated by its individual contractors. It is a contract that mandates sexual intercourse in that it can be invalidated if a marriage is not consummated, a provision that under any other circumstances in the United States would be defined as a contract for prostitution and that contributes to the presumption of marital rape as a definitional impossibility. Further, the marriage contract specifies the sexes of the two parties who will enter into the agreement, thus clearly indicating that it is a contract not between individuals, but between a man and a woman. It is, Pateman argues, not a contract at all, but a means of defining status for people as men and women.
One might assume that the extension to gays and lesbians of the right to form marriage contracts would be positive in that it would help to remove the last vestiges of status by expanding the understanding of individual to include women and by making marriage less of a status relationship and more of a contractual relationship. Individuals then would be able to exercise freedom as they controlled the conditions under which they entered the private realm. This is, after all, what Eskridge (1996), Stoddard (1989), and gay civil rights organizations hope to see happen. Pateman, however, provides an argument that rejects the hopes held out by these theorists and organizations. What these theorists ignore, she argues, is that "the `individual' is a patriarchal category. Contract may be the enemy of status, but it is also the mainstay of patriarchy" (1988, 168) because the differential abilities that people have to negotiate contracts are central to the hidden patriarchal power of modern industrial capitalism. Marriage, stripped of all of its legal requirements, becomes nothing more than a prearranged divorce, or a negotiated deal in which he or she with the greatest bargaining power will get the best deal. In this sense, just as a worker is unlikely to get a beneficial contract from an employer unless there are social regulations influencing the bargaining process, the person with less power is unlikely to get a good marriage/divorce contract. In heterosexual relationships, the power to bargain would help men to maintain patriarchal power unless significant social and cultural change came with the new understanding of marriage. Similarly, the power to bargain does not in itself give working-class men significant bargaining power. Although the visible presence of couples without such gendered power differentials working to negotiate more equitable relationships could help to promote social and cultural change, such change likely depends on challenging inequality first.
Wendy Brown helps us to understand that gendered power can be sustained within society even without all men and all women participating in the institution of marriage. She points out that "to the extent that many elements of women's subordination are tied to a division of labor that does not require all biological women to occupy the position assigned their gender, the emancipation of particular women can be `purchased' through the subordination of substitutes" (1995, 164). In her discussion of what we might learn from President Clinton's withdrawal of his nomination of Zoe Baird to be the Attorney General, a withdrawal that occurred because Baird had employed undocumented immigrants and failed to pay social security taxes for them, Grace Chang points out that Baird's story, when combined with many others, "suggests [that] the advances of many middle-class white women in the workforce have been largely predicated on the exploitation of poor immigrant women. While middle- and upper-class women entrust their children and homes to undocumented immigrant women, the immigrant women must often leave their own children in order to work" (1994, 153; see also Amott 1993). Thus status, and in particular gender status, may be foundational in the marriage contract, but removing the gender requirements within marriage by itself will not change the overall dynamic of the sexual division of labor. Eskridge's own discussion of same-sex marriage in other cultures displays very effectively the reality that it can be quite compatible with and reinforcing of a gendered division of labor. Thus, in many of the cultures that he discusses, marriage was contingent upon one partner adopting the social role of the other sex. As a result, the institution of marriage with a gendered division of labor was not only not threatened by homosexual relationships, it was reinforced.
We can also explore some of the implications of Pateman and Brown's arguments by considering the connection between the marital relationship and the legitimate birth and nurturance of children. Martha Fineman and Gillian Dunne each note that the marital relationship is particularly important because the family-household system dominant in industrial capitalism is one that understands the sexual relationship between adults as central to the definition of a real family. Fineman connects the valorization of marital sexuality to the construction of nonmarried mothers as deviant. "The very label `single mother,'" she writes, "separates some practices of mothering from the institution of `Mother' by reference to the mother's marital situation" (1995, 148). Similarly, Dunne observes that privileging marital relationships works both to institutionalize heterosexuality and to devalue primary nonsexual relationships, whether same-sex or "opposite"-sex (1997, 13-14). Why, we might ask, is sexuality so important to marriage? We should further ask, how is "appropriate" sexuality guaranteed within cultural ideology and the legal regulation of marital relationships? How our understanding of marriage and sexuality might change with the legalization of gay and lesbian marriage is worth speculation because such speculation reveals both the limits of inclusion within the institution of marriage and the potential consequences of extending contract further into private life.
The Regulation of Sex in Marriage
Fineman argues that there is some, but not much, flexibility built into what courts will recognize as "the sexual family": "To a large extent, the new visions of the family merely reformulate basic assumptions about the nature of intimacy. They reflect the dyadic nature of the old (sexual) family story, retaining the centrality of sexuality to the organization and understanding of intimacy." Later she adds: "The dominance of the idealized sexual family in social and legal thought has restricted real reform and doomed us to recreate patriarchy" (1995, 147). Ruthann Robson makes a similar point in arguing that understanding the contradictory nature of legal decisions involving lesbians, gays, and questions of family requires that we see how the state recognizes only those relationships that do not challenge dominant understandings of property. She writes:
Braschi's emphasis on the "exclusivity and longevity of relationships," Kowalski's attention to the issue of monogamy, and the domestic partnerships affidavits mandating affirmation that the other is one's "sole domestic partner" all demonstrate the property model of relationship by valorizing exclusivity in sexual relationships.... The not-so-implicit message is that lesbian/gay relationships will be accorded the status of family only to the extent that they replicate the traditional husband/wife couple, a tradition based on property relationships. (1994, 987)
Through regulation of the private--re-creating a family system that has historically guaranteed the provision of the labor of care in a private setting--it is possible to create and regulate gay and lesbian households, while also protecting a moral order that plays an important role in supporting capitalism. Because the law understood wives and children as little more than a husband's property, it was able to create a justification for the power of the male head of household--power used to extract the labor of care from his wife and to control children.
We can consider further the importance of sexual exclusivity within marriage and the impact of inclusion into the marriage contract by exploring the regulation of marriage through the requirement of consummation, which guarantees that the family is a sexual family. Richard Collier (1995) provides a detailed analysis of the construction of appropriate sexuality and masculine identity in British law through legal cases contesting the consummation of particular marriages. In these cases, the courts decide what counts as meaningful enough sexual interaction within a marriage so that the marriage should continue. This obviously raises an important question: What is the state's goal in recognizing marriage and requiring consummation? After a judge determines this, s/he must decide whether the sexual acts in which the couple has engaged (if any) are adequate for accomplishing the goal. Courts have tended to identify two aims: to prevent licentiousness and to encourage procreation. These two assumptions about the role of marriage have led judges to mandate a particular form of heterosexual sex: vaginal penetration by the penis. Collier, who argues that preventing licentiousness is now the primary goal, notes that "a husband may have to submit to the misfortune of a barren wife, but as long as he can still experience pleasure, he will not be tempted elsewhere" (1995, 160). The courts, we might say, agree with Eskridge that an important function of marriage is to civilize people (mainly men), while going further to suggest that such civilizing is only likely to happen if a particular form of sexual activity takes place within the marriage. Given the important social function of minimizing nonmarital sex, the courts can void those contracts where they--generally in conversation with "experts" such as medical professionals--determine that appropriate sexuality has not taken place.
This raises the intriguing and frightening question of how courts would define consummation in relation to lesbian and gay couples. Given the focus on penile penetration and male pleasure, it is difficult to conceive of what courts would say in relation to lesbian sexuality, particularly since it is already at least arguable that much of lesbian sexuality does not fit neatly into social understandings of "having sex." As Marilyn Frye (1990) notes, we can either assume that studies of sexual activity are accurate and that lesbians simply have less sex than either heterosexuals or gay men, or we might see these research results as an indication that lesbian sexuality in particular and women's sexuality in general are definitionally either unlikely or impossible in a society focused on male orgasm. If this is the case, courts forced to determine whether lesbians have "had sex" will either be challenged to view sexuality more broadly, or can more easily nullify lesbian marriages due to lack of consummation. Nullification could become a powerful weapon in custody cases that biological mothers could use to deny rights to partners, since courts often understand biological parents as having primary rights. If courts begin to understand sex more broadly, they will also understand adultery more broadly, something that again might not be desirable.
This discussion may seem somewhat bizarre and far removed from the realities that most lesbians and gays will face with the extension of marriage rights. But, courts will make rulings in relation to questions such as these. Additionally, such discussion and debate is not unknown among legal theorists and practitioners even now. For example, in exploring the impact of insemination with donor sperm (AID) on family and marriage law, William O'Donnell and David A. Jones discuss whether AID can "count" toward consummation--an issue on which there have in fact been court rulings. They note that conservative lawmakers might be reluctant to allow AID to stand in for consummation because "the inability to consummate an intimate relationship is frequently cited as a major ground for denying certain marriages, particularly same-sex unions. Under the latter expansion, however, lesbian couples could consummate just as easily as heterosexuals, simply by arranging AID for one of the parties" (1982, 223). This point is one that lends significant weight to Pateman's fears concerning the gendered nature of marriage and the way gender differences can influence marriage even if the institution is not explicitly heterosexual: what O'Donnell and Jones suggest as a possible definition of consummation would make pregnancy a definitional part of lesbian marriage. Thus, if one of the state's goals is to promote childbearing by some segments of society, courts could regulate lesbian marriage in ways quite compatible with this goal. At the same time, the focus within the law on penile penetration would make gay marriages consummatable without childbearing. Gender differences, in this scenario, would be just as important as they are currently; they would exist within marriage as an institution, not as an individual relationship. It may be that thought concerning consummation, how the definition of consummation works to construct the definition of marriage, and how the requirement that marriages be consummated regulates people are not as rare as might be believed. Given the definition of expertise that is accepted by judges, they will be making these decisions in consultation with psychologists, physicians, and other medical professionals, not intentionally with gay, lesbian, or feminist activists. Further, the rulings set down will construct the definition of family and sexual normalcy more widely, particularly in divorce proceeding and custody hearings.
The Limits of Lesbian and Gay Marriage
Political theory can provide powerful arguments against seeking inclusion into the institution of marriage, but these arguments may have little persuasive power for lesbian and gay couples trying to confront challenges such as the denial of health care benefits to partners or the denial of hospital visitation rights to partners. For these couples, marriage may appear to be the only means of addressing financial and legal challenges. How, we might ask, do the theoretical concerns that I have discussed thus far fit with the concrete benefits that marriage rights provide? In other words, while one function of marriage is to consolidate the status of people as men or women, marital status is nonetheless an important consideration in our society. Therefore, we need to understand what the status "married" brings to couples. To explore the limits of marriage in meeting needs, we must consider to what extent marriage enhances freedom by providing options for meeting human needs. Are there ways by which marriage as an institution limits the ability of human beings to explore and define their needs? If there are, we need to consider how we can weigh the costs and benefits. Following Brown's analysis, we can ask whether entrance into marriage would decrease domination, with domination understood as a situation in which state and economic policies are not meeting human needs, but rather restricting them. How would the extension of marriage rights work in relation to concrete problems, such as those outlined in the introduction?
An important place to begin is the financial consequences of marriage law. How does legal constitution as a family help households to be financially solvent? Certainly domestic partner benefits and the benefits that married couples receive automatically have a significant impact on the financial health of many couples. It is apparent in the interviews that Suzanne Sherman (1992) conducted with lesbian and gay couples that economic benefits are the primary reason many of these couples care about legalized marriage. Yet by supporting marriage in order to get material benefits, we fail to ask whether basing benefits on marital status and whether the class bias involved in the current distribution of benefits are fair. As noted earlier in this chapter, lesbian and gay couples not covered by domestic partnership benefits face a constant economic question: How can they provide for themselves, each other, and, if they have them, their children? If they were heterosexual, either partner could extend her/his benefits to include the family as a whole. Since marriage is not possible, couples cannot automatically provide for either one another or for children. It is undeniable that this situation creates hardships for many couples. It is also true that many of these couples would benefit from marriage. There are, however, a number of important limitations, limitations that are indicative of the limits of marriage to enhance human freedom. First, and most obviously, a couple can enjoy economic benefits only in cases where at least one partner has a job that provides benefits. Given recent changes in the economy, and the widening gap between rich and poor, significant segments of the gay and lesbian population, like the heterosexual population, would fail to make significant economic gains even with legalized marriage. Thus it is important to be aware of the extent to which one's economic class has an impact on the benefits that will accrue from marriage (see Ettelbrick 1989).
The extension of marriage rights would also extend an already existing status differential, one that is essentially representative of class status. It is true, as Eskridge suggests, that in essence gay people subsidize the marriages of our heterosexual married fellow citizens. Yet this is only part of the story. There are three other points that deserve attention if our goal is to decrease domination for all gays and lesbians. First, since gender has a large influence on where men and women fit into the labor force, lesbians will be less likely than gay men to benefit positively from entrance into the institution of marriage. Second, it is important to remember that all nonmarried people (or more accurately all people without domestic partnership or marriage benefits) subsidize the relationships of married people, or those who receive domestic partnership benefits. Thus, those who might choose to remain single or to have multiple partners would still pay economic penalties. The families that Weston discusses, though sometimes organized around current sexual relationships, often are not. Finally, since family benefits are benefits provided largely by private business and the state, they are highly regressive benefits. That is, they are most available to those with either unionized jobs or professional jobs, but all consumers pay for these benefits because pricing and taxation reflect their cost. Those who can least afford benefits, therefore, pay for the benefits of others each day when they make purchases and pay taxes. Thus, if the goal in advocating marriage is to help some gay and lesbian people to become economically better off, marriage will succeed; if the goal is to increase freedom and decrease domination, this is a policy that will fail.
One of the clearest cases in which marriage rights would bring immediate benefits is where one partner in a relationship is hospitalized or dies. Without marriage rights, hospitals often do not permit the other partner to make medical decisions, nor is that partner guaranteed the role of executor of the estate. As Eskridge points out, the AIDS pandemic has made it very clear how vulnerable gays and lesbians are in such situations. In the case of medical decision-making, the extension of marriage rights does provide a means of lessening vulnerability, but it does not do it very well. For those gays and lesbians who choose to marry, there would be clear guidelines regulating visitation. But, as Ettelbrick notes, marriage rights will not "address the pain and anguish of an unmarried lesbian who receives word of her partner's accident, rushes to the hospital, and is prohibited from entering the intensive ward or receiving information about her condition solely because she is not a spouse or family member" (1989). Additionally, for those who choose to not be monogamous or who organize their private relationships around a network of friends rather than or in addition to a lover or partner, the problem remains. Further, the possibility that a hospitalized or deceased person could have assured a different outcome by marrying can keep us from asking what is an important question: How do we allow adults to indicate their preferences for caretakers and executors regardless of formal family connections without also requiring that they incur legal expenses? Marriage rights may secure protection for some, but at the cost of ignoring more comprehensive social changes that might provide real options and real freedom. Again, Ettelbrick's analysis remains compelling: "Only when we de-institutionalize marriage and bridge the economic privilege gap between married and unmarried will each of us have a true choice. Otherwise, our choice not to marry will lack legal protection" (1989). That is, the extension of marriage might well make it harder for us to form the "families'" that we choose by extending the reach of family as defined and regulated currently.
As we further consider the role that the family plays in recreating both patriarchy and property relations, it is important to remember that the ideal family begun with entrance into marriage is more than a contract between two adults. Within dominant social ideology and legal reasoning, the marriage contract is the first step in the parenting of children. Chief Judge Swanson, of the Washington State Court of Appeals, expressed well the ideological centrality of children to the marital relationship in his majority opinion in Singer v. Hara : "The fact remains that marriage exists as a protected institution primarily because of societal values associated with the propagation of the human race" (qtd. in Rubenstein 1993, 415). He, like others, goes on to argue that since same-sex couples cannot procreate, denying recognition to gay and lesbian relationships is not discriminatory on the basis of sex. Our examination of the family-household system, then, needs to pay careful attention to the regulation of men and women as parents. For gays and lesbians to demand entrance into the system of marriage is also to demand entrance into a system of parental regulation, one that in the complete absence of such regulation may appear attractive but that, in fact, may contain values that are constraining.
Another significant issue that lesbians and gays face concerns our ability to form significant relationships with children. For many lesbians, there is a fairly simple way to build such connections: we can bear children. Yet the relationships that many of us might form are likely to be with children who are not biologically our own. Thus far, lesbians and gays, along with many heterosexuals, have done this in various ways: co-parenting a partner's child; surrogacy arrangements; acting as a co-parent to a child being raised by a group of friends; adoption or foster parenting; and, in the words of Patricia Hill Collins (1990), "othermothering" or caring for a child who happens to need care at a particular moment. In many of these instances, gay and lesbian nurturers (like heterosexuals in similar situations) are in legally vulnerable situations. Marriage rights might be useful in cases where two adults in a sexual relationship decide that they would like to parent together, but in situations where the adults who wish to parent reject the definition of a "good" family as composed of children and two sexually monogamous parents, marriage would not be helpful.
There are multiple issues embedded in the question of how adults gain and maintain rights and responsibilities in relation to children that marriage rights cannot address. The most obvious instance is maintaining the rights of multiple parents who may have no sexual relationship with one another. This is a question, in part, of the ethics that we bring to the formation of private relationships. Since there is evidence that lesbians have been willing to violate such agreements in order to deny custody to former partners, it is tempting to suggest that the state is an important alternative. Yet accepting state regulation in this instance works to reassert the two-parent family norm that harms lesbians and gays, as well as others, who choose to form families that deviate from this norm. The alternative is to contest the norm and, therefore, for lesbians and gays to develop a political position that encourages a cultural transformation in how our society thinks about relationships between adults and children. In this new form of relationship, there might be less focus on legal rights, particularly those that one has simply because of biology, and more focus on the care that adults provide in their relationships to children. Eskridge recognizes the challenge that gay and lesbian "families we choose" can pose to the law as it exists: "Because procreation will necessarily involve a third party, children will introduce differences. For instance, third-party sperm donors and surrogate mothers (and perhaps their partners) are more likely to be part of the lesbian or gay family than is the case with heterosexual families. Lesbian and gay `families we choose' would, in the short term at least, be more extended than heterosexual families" (1996, 117). What Eskridge does not ask is what impact marriage rights might have on the ability to form and protect the interests of those in these more extended families. That is, would the extension of marriage rights help to reinforce an understanding of family that is antithetical to building such extended units for the nurturance of children? If so, how might we frame an alternative vision of parenting?
Finally, as we attempt to understand the limits of entering into the institution of marriage, we should remember that central to marriage and marriage law is divorce and divorce law. Given that gay and lesbian relationships are unlikely to last longer than the relationships of heterosexuals, we also need to ask how single parents can support themselves and their children financially while receiving the emotional support that they need to raise their children. The emphasis on marriage rights sometimes accepts and reinforces the superiority of two-parent households in a way that draws from and reinforces current discourses of family and parenting. For example, Eskridge raises the superiority-of-two-parents argument as he discusses why denying marriage rights harms children: "A few studies," he reports, "have found that children raised in a two-parent lesbian household are better adjusted than children raised in a single-parent household, whether the single parent is straight or lesbian" (1996, 113). This sentence clearly sets up a ranking between different forms of family, one that provides no support for single parents--whether lesbian, gay, or heterosexual--and ignores evidence suggesting that single-parent families are quite capable of providing the nurturance that children need, if they have adequate resources (Stacey 1996).
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