Word Count: 1976
12.6.2010
Marriage: "The Gay Agenda"
Since I’ve started to think about marriage as it affects my life, I’ve become more aware of the bigotry and oppression in the institution of marriage in America. In my life, the marriages that I’ve heard of have taken place for love. Growing up, I learned that, in actuality, a lot more goes into the process of marriage than I knew. I’ve started to realize that interracial couples and their plight, as seen in Loving v. Virginia, are much like the same-sex couples of today. Many of the arguments being used against single sex partnerships today are similar to those used to defend anti-miscegenation laws. Interracial marriage was rumored to be an abomination that couldn’t produce viable offspring, and its ban made marriage between a white and a non-white person seem as though there was something inherently wrong with two consenting adults in love marrying. As much of the same is said by supporters of Proposition 8 (a California proposition that banned same-sex marriage), I wonder what the real reasons are behind banning interracial and single-sex marriages. The historical ban on interracial marriage and the current ban on same-sex marriage support a racist and heterosexist ideology that claims that there are certain practices that are “normal,” and certain practices that are not, and should be looked down upon; these bans, by being unbending in the laws surrounding marriage, participate in the creation of social constructions of race, gender, and sexuality.
The ban on interracial marriage, though now ruled unconstitutional, never failed to make me wonder exactly why the ban existed in the first place. It comes easily to me as a minority who was raised in the twentieth and twenty-first centuries to see that anti-miscegenation laws were wrong and should never have existed. However, when I was looking through different court cases, I was taken aback by what seemed to be the lack of rationales on the part of the judges. Instead of realizing that separating the whites from the non-whites would only further the belief that there was a superior race, judges repeatedly claimed that the separation of two races in marriage was a perfectly acceptable, and even positive thing. Considering the fact that “the miscegenation taboo notoriously had invidious racial connotations,” (Koppelman, 222) this is not surprising. While there are underlying racial supremacy connotations in anti-miscegenation laws, the big question is if those voting for anti-miscegenation are aware of why they are doing so. Koppelman also comments on this, saying “One can recognize what everyone knows that the miscegenation taboo is somehow linked to white supremacy, that the link is part of its implicit meaning” (222). While there is a link, Koppelman’s statement leads me to believe that “Americans” (“Americans” in this situation meaning white people) are born and raised in a society with an undercurrent of racism, with the idea that their race is superior to all others. In Loving v. Virginia, it is very clearly stated that there is a difference between a white and non-white person, and Virginia law gives a very clean-cut definition of what exactly a white person is, saying:
The term ‘white person’ shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. (http://caselaw.lp.findlaw.com)
By trying to create a boundary between different races, the ban on interracial marriage was enforcing a social construction that stated that there was a race that was superior to all other races. The ban, in a sense, is also claiming that race can be defined biologically (via blood lines). In creating, supporting, and enforcing these false claims, the hegemon/subaltern binary of white/non-white and what exactly made someone “non-white” permeated through society.
Laws concerning gender and sexuality, in my experience, often tend to dovetail. I believe that this is because American society is cissexist (the ideology that gender and sex exist in harmony) and heterosexist, meaning that—In America—the gender binary is perfectly acceptable and should be conformed to. This is not the case with many modern LGBT Americans. For example, in the case of Littleton v. Prange, I saw that gender is not the only thing keeping same-sex couples from getting married. In the court case, Christie, who was born biologically male, had been transitioning to female from a young age. She married a man, and when he died, doctors claimed that she could not be a proper wrongful death beneficiary because she was “created a man,” (Greenberg, 752) which brings into question what actually makes up a person’s gender, and the difference between gender and sex. The question in this case seems to revolve around what factor should keep same-sex couples from being able to marry: gender identity or biologically assigned sex. Doctors who were brought forward to testify in the Littleton case asserted that Christie was medically a woman. However, “according to Justice Hardberger, Christie was born male and therefore she remained a male the rest of her life” (Greenberg, 752). In essence, this case was trying to determine what exactly made someone male or female, which supports the belief that gender is a binary and not a spectrum. In Greenberg’s “When is a Man a Man and a Woman a Woman,” she gives the medical criteria for sex as:
Genetic or chromosomal sex; gonadal sex; internal morphologic sex; external morphologic sex; hormonal sex; phenotypic sex; assigned sex/gender of rearing; and gender identity. (753)
These criteria don’t differentiate between sex and gender, which is what I felt needed to be done in the case of Christie. While she was born biologically male, she had altered more than half of the characteristics listed for sex to fit how she identified mentally. The gender binary of male/female in this case is asserted strongly, and the case is a part of what serves to reinforce that binary, and the social construct that a person’s sex and gender identity should be the same, especially for the purpose of marriage. Enforcing a gender binary, whatever the cause, however, is harmful to those who do not fit into one masculine or feminine category, as it makes them feel as though they do not belong in society at all. They are being looked down upon as a type of second class citizen. Americans who fit a gender binary, and who do conform to societal gender norms, don’t see this as a problem, simply because they can still marry freely who they fall in love with without a long and drawn out court process.
Sexuality, however, is different in that many of the arguments used against interracial marriage have been recycled and used to create a negative stigma surrounding the LGB community. A recent example of this would be a small town in Oklahoma refusing to graduate two lesbians once the school found out they were living together. The principal, much like Justice Hardberger in the Littleton case, used his own beliefs to “guide” the teenagers. He is quoted as saying “Well, you're gay. You're not going to do anything with your life. You might as well just drop out now” (http://advocate.com).
The case that could come of this delves into what “fundamental rights” are actually fundamental to the gay community. While education is not a fundamental right, for it to be denied to youth is saying that their education, because they are a part of the LGBT community, is unimportant and is not important when compared to the education and well being of a straight student. I feel like this kind of a statement goes completely against the Equal Application Theory; if a straight student can be educated, regardless of their living situation, then it stands to reason that a gay or lesbian student should be able to receive education from the same school, regardless of their living conditions. As Ashley Lee says in her paper, “Sex-discrimination violates the Equal Protection Clause of the Fourteenth Amendment and, as a result, is classified as heightened scrutiny” (azhleee.blogspot.com/). To me, it stands to reason that if sex, gender, and sexual orientation are not choices that we get to make, then discrimination against someone who doesn’t conform to social norms about sexuality and gender should also violate the Equal Protection Clause, based on the logic of the Equal Application theory, and should receive heightened scrutiny. This unconstitutional ruling seems to me to be more about a fear of a successful, happy homosexual than it is about what is “right” for today’s America.
It is important to remember, though, when dealing with sexuality, that every binary has a liminal space that is oft full of many different subgroups. For example, in the straight/non-straight binary, there are many people who would categorize themselves as bisexual, which opposes the binary. However, going deeper into the liminal space, there are terms such as pansexuality, which is liking a person regardless of their sex or gender expression (which brings the term “genderqueer” [not conforming to one gender or the other, also bigendered] into play). Terms such as asexuality also appear, which is a term used for a person who does not experience sexual attraction. In dealing with people who fall into these categories, I wonder how exactly a court of law would deal with a marriage case of someone who, on a given day, would identify as masculine, then another as feminine. It seems to me that one of the major flaws in the court is that many of the judges make their decisions based on the biologically assigned sex of the individual. In one case concerning a transsexual woman (in Re Gardiner Estate, Kansas [2002]), the court declared that “The words ‘sex,’ ‘marriage,’ ‘male,’ and ‘female’ in everyday understanding do not encompass transsexuals. The common, ordinary meaning of ‘persons of the opposite sex’ contemplates what is commonly understood to be a biological man and a biological woman. A post-operative male-to-female transsexual does not fit the common definition of a female” (http:// intersexinitiative.org). Had this phrase been left on its own, I would have no qualms with the argument, as a transsexual woman does not fit the “common definition of a female.” However, that is not the case, as the ruling goes on to say “A traditional marriage is the legal relationship between a biological man and a biological woman for the discharge to each other and the community of the duties legally incumbent on those whose relationship is founded on the distinction of sex” (http:// intersexinitiative.org). Saying this is making the argument that because transsexual persons do not conform to the gender binary, that they should not be allowed to marry, unless they do so to the opposite sex of that which they have been biologically assigned. However, as seen in the Littleton case, when more than half of one’s identifiers of sex have been changed, when do we consider that person to be biologically the sex/gender they identify as? Not allowing a trans person to marry takes away their fundamental right to marriage, and telling them that they can only marry based on their biologically assigned sex is enforcing a social construction that denies the existence of anything other than an unchanging gender binary.
In modern America, today’s moral ideals have been created by a society that holds undercurrents of racism, cissexism, and heterosexism. That being said, I still believe that there is hope for an American who does not fall under what the dominant culture’s definition of normal is to grow and flourish as a person. By refusing to give up, there is a chance to overcome the negative stigmas surrounding race, sexuality, and gender, and the social constructions that force those minorities into confining and not all-defining binaries.
Works Cited
1. The Advocate. "Lesbians Stopped From Graduating | News | The Advocate." Gay News | The Advocate | The World's Leading Source for LGBT News and Entertainment. N.p., 15 Nov. 2010. Web. 16 Nov. 2010. <http://advocate.com/News/Daily_News/2010/11/15/Lesbian_Students_Stopped_from_Graduating/>
2. The Asexual Visibility and Education Network. 2008. Web. 1 Dec. 2010. <http://www.asexuality.org/home/>.
3. "Christie Lee Littleton Story -- Courts Negate Her 7-year Marriage." The WomynWeb Network. 13 May 2001. Web. 05 Dec. 2010. <http://christielee.net/main1.htm>.
4. "Fundamental Rights." Wikipedia, the Free Encyclopedia. Web. 04 Dec. 2010. <http://en.wikipedia.org/wiki/Fundamental_rights>.
5. Greenberg, Julie. "When Is A Man a Man, and When is a Woman a Woman?" 52 Florida Law Review 4. September 2000.
6. "In Re Gardiner Estate (2002)." Intersex Initiative. Web. 6 Dec. 2010. <http://www.intersexinitiative.org/law/in-re-gardiner-estate.html>.
7. Koppelman, Andrew. "Why Discrimination Against Lesbians and Gay Men is Sex Discrimination." 69 New York University Law Review 197, 1994.
8. Lee, Ashley. "CSP 19 Final Paper First Draft." Love for Life and Fashion. 06 Dec. 2010. Web. 08 Dec. 2010. <http://azhleee.blogspot.com/2010/12/csp-19-final-paper-first-draft.html>.
9. "Loving v. Virginia." FindLaw: Cases and Codes. N.p., n.d. Web. 16 Nov. 2010. <http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=388&invol=1>.
