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Article Excerpt
"Words having meaning, and few words have more meaning to our culture and civilization than does marriage."
--Gordon H. Smith, Republican Senator from Oregon, on the proposed Federal Marriage Amendment (Stolberg A16)
On November 18, 2003, the Massachusetts Supreme Judicial Court reached a landmark decision in Goodridge v. Department of Public Health: under the state constitution's Equal Protection clause, Massachusetts had no legitimate reason for denying gays and lesbians the right to marry. Goodridge is remarkable for granting gays and lesbians the right to marry, in contrast with the Vermont Supreme Court's decision in Baker v. State, which required only that the state legislature find a means of granting gays and lesbians the same benefits as marriage. In light of the clarity of its decision, the Massachusetts Court provided the legislature with 180 days to make any necessary legislative changes to accommodate the decision. On February 4, 2004, in response to the Massachusetts Senate's efforts during that time to create a civil union status in place of marriage, the Court declared that the substitution of "civil unions" for "civil marriage" was unacceptable: "The dissimilitude between the terms [...] is not innocuous. It is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status" (Belluck, "Mass. Gives New Push" A1). Rebuffing the Court, in March 2004 the Massachusetts legislature approved the first round of an amendment to the state's constitution to define marriage as the union of a man and a woman and to grant gays and lesbians most of the same rights, benefits and obligations afforded to married couples. If approved, the amendment would rename the same-sex marriages approved between May 17, 2004 and the time of its effect as civil unions. (1) One political analyst summarized the legislative maneuver as an attempt "... to preserve heterosexuals' linguistic rights to the word marriage, but grant[] homosexuals most of the rights" (Belluck, "Gays' Victory").
Is the attempt in Massachusetts to pass a constitutional amendment (one of many now circulating in various state legislatures) a legislative maneuver to control language? Justice Martha B. Sosman of the Massachusetts Supreme Judicial Court, who dissented from the majority opinion, reiterated the linguistic stakes when she described the situation as "a pitched battle over who gets to use the 'm' word"; the battle over marriage is so volatile that Sosman even proposed renaming all unions to avoid the term altogether (Liptak A20). Heterosexuals are not the only ones concerned, as gay couples have also demonstrated their own passionate attachment to the word. An advocate for same-sex marriage recalled his and his partner's decision to apply for a marriage license: "We just wanted marriage. Words are important and we deserve that word" (Lewin 4). Domestic partnerships and civil unions are some of the ways that gays and lesbians have accrued, in very specific institutional contexts, a limited number of the benefits reserved for civil marriage. The debate in Massachusetts over substituting "civil unions" for "marriage" underscores the extent to which gays and lesbians' struggle for equal rights has now pinned its hopes not only on the distribution of benefits but on the intangible, symbolic value that undeniably accompanies that single word. As a result, in the press, legislatures, and courts across the country, the battle to preserve the heterosexual right to the word marriage is framed as a debate about the meaning of marriage as an institution. Is marriage the union of two intimately involved and committed individuals? Is it a state-sanctioned partnership that offers benefits and demands obligations? Is it a "sacred institution" that functions as the "bedrock of society" by providing the optimum structure for reproduction and child rearing?
Marriage in U.S. law is defined, according to Black's Law Dictionary, as "the legal union of a man and a woman as husband and wife" (986); however, as Richard Mohr points out, the standard legal definition fails to specify the nature, structure, and function of that union ("Case" 88). (2) The aforementioned questions about the meaning of marriage and the union it specifies remain unanswered. However imprecise its legal definition, marriage clearly involves a man and a woman. On that basis, opponents of same-sex marriage have not retreated from the belief that the word "marriage," whatever it designates, is intrinsically heterosexual. As Lynn Wardle, one of the most vociferous opponents of same-sex marriage in the legal academy, puts it: "Consistently in our legal tradition, the very nature and essential meaning of marriage is heterosexual" ("A Critical Analysis" 38). (3) Marriage on this score would seem to be fixed by definition, impervious to social transformation. According to this logic, it is nothing more than a subcategory for heterosexuality, a more exalted version of heterosexual relationships. In Richard F. Duncan's pithy yet tautological formulation, "homosexual marriage is an oxymoron. It simply does not exist, because the legal definition of marriage 'is that it is a union of a man and a woman'" (qtd. in Gerstmann 20). Yet the very coining of the phrase "homosexual marriage" and its variants asserts that, like any word, "marriage" can undergo changes to its definition. Brought to linguistic life, same-sex marriage as a concept does exist. The introduction of the discourse of same-sex marriage has in turn given birth to a number of linguistic offspring: "conventional marriage," "traditional marriage," "real marriage," and "heterosexual marriage" are now being used to qualify what was once simply "marriage."
What name should be given to the formal, legal recognition of gay and lesbian relationships? Should more than one type of relationship be recognized? If so, should one of those names be "marriage"? There are no simple answers to these questions. Any discussion of how gay relationships are to be named by the law is an invitation to enter a historical field fraught with slippery definitions and confused terminology. The language of sexuality is rarely, if ever, innocent. "The love that dare not speak its name," "sodomy," "homosexuality," "gay," "lesbian," and "queer"--each term has a genealogy of its own, each one captures something different about the historical development of same-sex desire and sexual practices. To deploy these terms is to evoke intertwining etymological histories that collectively produce our modern understanding of same-sex desire and identity. Although it appears to be a seemingly coherent category of sexual orientation, homosexuality is, in fact, riddled with internal contradictions about the relationship between erotic desire, sexual acts, and personal identity. The name given to gay and lesbian relationships will invariably reference, directly or indirectly, the ideological substance of the terms already in circulation for same-sex desire. The word chosen to designate formal recognition of gay and lesbian couples is thus inextricable from how those relationships are conceptualized. The debate around the "linguistic rights" to the word marriage is, at root, a debate about the meaning of homosexuality, about the place and function that homosexuality occupies in contemporary U.S. culture.
Foucault famously argued that sexuality, as a mode of organizing bodies and pleasures into intelligible subjects, was a uniquely modern invention. His oft-quoted sentence, "The sodomite had been a temporary aberration; the homosexual was now a species" is often taken to indicate a novel transformation of desire into sexuality as an expression of individual personhood (43). (4) Nevertheless, the nineteenth-century model of sexual psychology did not simply supersede the former, religious-based model of sexual acts. As Jonathan Goldberg reminds us, the former persists in our understanding of the latter, our modern categories of sexuality being far more unstable than we presume (10). "How and where does "that utterly confused category" [sodomy] survive and what work does it continue to do?" Goldberg asks (6). The discourse of sodomy persists, I would answer, in the same-sex marriage debate. To trace the lingering presence of sodomy in the same-sex marriage debate, the essay begins with a close analysis of the rhetorical configuration of homosexuality in the recent U.S. Supreme Court case, Lawrence v. Texas, which overturned the case that had upheld the criminalization of sodomy, Bowers v. Hardwick. Lawrence dramatically alters legal discourses for gay and lesbian sexuality by avoiding the language of sodomy, but it also navigates a narrow path around the issue of same-sex marriage. In so doing, Lawrence leaves intact some of the ambiguity at the core of the discourse of sodomy for the law's treatment of gay and lesbian relationships. The second part of the essay turns specifically to discourses about same-sex marriage in the aftermath of Goodridge to examine how sodomy, treated as a synonym of homosexuality, "survives" in the arguments advanced by legal scholars in favor of marriage as an exclusively heterosexual institution. Focusing on the complex nexus of act and identity central to the law's conceptualization of sexual orientation, this essay suggests that arguments in favor of heterosexual marriage reinforce a juridical tradition of reducing homosexual identity to sexual acts.
Sodomy vs. Sexual Intimacy
Lawrence v. Texas marks a watershed shift in the juridical language for homosexuality. The case emerged in 1998 in Houston, Texas, when the police entered John Geddes Lawrence's apartment, in response to an alleged weapons disturbance, and found him engaged in anal intercourse with another man, Tyron Garner. They were arrested and charged with violating a Texas sodomy statute that made it a misdemeanor for a person to engage in "deviate sexual intercourse" with someone of the same sex. On June 26, 2003, the U.S. Supreme Court ruled 6-3 that the convictions under the Texas statute violated the two men's due process liberty and privacy interests; Justice Sandra Day O'Connor concurred with the decision but based her findings on equal protection. The Court held that the statute, although purporting to prohibit a particular sexual act, actually sought to control a personal relationship that was within the liberty of persons to choose without being punished as criminals. Therefore, the Court concluded, the statute furthered no legitimate state interest that could justify the state's intrusion into the personal and private life of the individual. Justice Antonin Scalia, writing the dissent and joined by Justices William H. Rehnquist and Clarence Thomas, argued that the Texas statute did not violate due process or deny equal protection since it did not impinge upon any fundamental right and was rationally supported by a legitimate state interest in the promotion of majoritarian sexual morality.
Justice Anthony M. Kennedy's opinion for the majority begins with the individual right to privacy and the freedom of association with other consenting adults--an "autonomy of self" that includes "certain intimate conduct" (2475). Citing precedents such as Griswold v. Connecticut and Eisenstadt v. Baird, he constructs a narrative of ever-widening consideration for individual autonomy in the realm of sexuality: from the privacy of the marital bedroom, to the sexuality of both married and unmarried couples, to the individual right to control one's sexuality because it plays a significant role in one's "destiny." (5) Kennedy's opinion traces a progression in constitutional law from married, heterosexual intimacy to an expanded liberty between two consenting adults, married or unmarried, to engage in private sexual relations. "Lawrence eliminates the last vestiges of marriage," writes Nan Hunter, "as the only zone of permissible expression for any and all forms of sexual practices" (1109). In this context, sexuality becomes a zone of privacy between two consenting individuals: "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do" (2482). But Kennedy does not simply add sexual conduct to the list of personal freedoms such as marriage, procreation, contraception, and child rearing that are protected by the Constitution. As Laurence Tribe argues, Lawrence initiates a general movement away from the...
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