Tag Archives: Supreme Court

This week in the Supreme Court

It is been a good kind of week, in which we can observe how basic feminist understandings about essentialism and the public/private binary have triumphed and become thoroughly mainstream.  On the one hand, it is scandalous that so much time and money is being spent on the attempt to prevent the legalization of gay marriage in the United States. DOMA and Prop 8 should never have been passed, as they create a blatant, obvious and cruel form of discrimination. I don’t know why a minority of US politicians continue to oppose marriage equality for all citizens, as in the past two days they have failed to articulate the reasons for their opposition. Those denied the rights given to straight couples are harmed politically, economically, culturally and socially, and we are all impoverished by living in a society which discriminates on the basis of sexual orientation, regardless of our own sexual orientation or desire or not to marry. By the way, Chief Justice Roberts, John Boehner and all you House Republicans trying to hang onto a discriminatory law, giving the rights to same-sex couples that are currently enjoyed by straight couples will not harm you personally in any way at all.  If you don’t like gay marriage, then don’t do it. Get married to someone of the opposite sex, or don’t get married at all. If marriage equality is upheld as a constitutional right, you won’t be forced into a gay relationship if that is not what you want.

Despite the dramatic failure of heterosexual marriage as an institution (the high rates of divorce and domestic violence, the uneven division of unpaid labour in most heterosexual households), it is something that many people still want to participate in. Ideally marriage is about love, sharing, loyalty and commitment (as well as about gaining societal status and recognition and access to equal rights such as social security and veteran benefits), so promoting through legislation a bit more love in the world, and the ability to express that love publicly can only be a good thing amidst all the things that are wrong in this world. In fact, if you care about kids and family values, this is urgent. The thousands of kids being raised by same-sex couples (some 40,000 in California alone) would cease to be subject to moral disapproval. Why should seven year old Lucy with two moms be treated differently from Sarah with a mom and a dad, or Hilary with just a mom, or Brian with a mom and a stepdad, or Sam who is being raised by his grandmother? Why should one family of one soldier killed in Afghanistan receive benefits in recognition of their sacrifice, while another family subject to the same tragedy be denied them?

Our families take many forms and gay and lesbian people who want to get married, often see themselves as a family and want to be seen as a family by the state and society in general. It is bizarre that a political party that often extols family values seems so indifferent to the suffering of actual families. Republicans don’t care about families. They remove the safety nets that allow families to get through tough times. They don’t want to ban assault weapons even though they are used to murder small children at school and US families are repeatedly torn apart by their all too frequent use. Many Republicans would prefer a desperate woman, who is somebody’s daughter or sister or mother,  with an unwanted pregnancy to risk her life in a backstreet abortion than have a safe legal abortion. They attack the Affordable Care Act even though it makes it easier for ordinary people to get health care. Accessible health care is good for families, and Michelle Bachman, it doesn’t kill women and children (see http://www.huffingtonpost.com/2013/03/23/michele-bachmann-obamacare_n_2940301.html), but a gun in the hands of an unstable person frequently does.

I am however really enjoying the way in which so many wonderful articulate women are putting these reactionary sexist white men in their place during the Supreme Court hearings this week, dismantling their essentializing arguments, leaving them incapable of mounting any kind of credible argument in response. Charles Cooper, the lawyer defending Prop 8, attempted to assert that marriage could only be between a man and a women in order to defend “responsible procreation”. He could not say tell Justice Sotomayor, why it would be wrong to deny someone a job on the basis of sexual orientation but not wrong to deny them the right to marry. On the question of “responsible procreation”, Justice Kagan asked Cooper if we should therefore deny marriage to people over 55, who are not able to conceive, or whether it would be inconstitutional. He was left unable to respond, and in his hilarious confusion about how babies are made, resorted to saying how men outlive their fertility. There has been a lot of laughter in the Supreme Court this week.

While some US states have legalized marriage equality, DOMA effectively annuls those state-given rights. DOMA ends up treating married same-sex couples as unmarried and thus denies them access to a whole range of federal benefits available to straight married couples, a situation which in the words of Justice Ginsberg gives us two kinds of marriage “the full marriage, and then this sort of skim milk marriage”.

Listening to Justice Scalia, it was apparent how inappropriate it is to homogenize or generalize about whole groups of people, as if families with straight parents have one set of attributes (loving, caring, good for children) while families with same-sex parents have an opposing set of attributes (dangerous, dysfunctional, bad for children). Nobody can take this seriously, as we all know that children are sometimes harmed in abusive households run by straight couples.  If children are harmed in same-sex households in any kind of general way, it is because their parents are treated like second-class citizens. Married couples, of any sexual orientation, do not of course have fixed essential attributes.

The entangling and mutual constitution of the public and private are amply revealed. It is abundantly clear that the question of marriage equality is simultaneously a public and private issue and at no point can it be reduced to one or the other. It is about our most intimate relationships, the people that we love in all kinds of ways, but it is about the presence of the state, and what it facilitates and constrains in our homes, our schools, our workplaces, our military bases and our communities. The fact that a symbol of the Human Rights Campaign has gone viral on social media attests to how this political change is now inevitable. These are moments of feminist and queer triumphs, the things that you would learn in Gender Studies 101, have become part of everyday discourse, part of the common sense.

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