'Just' Married?: Same-Sex Marriage and a History of Family Plurality

Posted: 29 May 2009 Last revised: 25 Jul 2015

Date Written: August 1, 2005

Abstract

Written in the wake of the adoption of constitutional amendments in eleven states limiting the freedom to marry, this article launches a critical historical and narrative inquiry into the struggle for marriage equality. Squarely situating its inquiry at the intersection of religion and politics, the article advances three propositions. First, we are called to be "just" in marriage. Constitutional principles of equality and liberty are offended by withholding the benefits of marriage from people who, "but for" their gender, are eligible for marital status. In considering the question of justice in marriage, the article will demonstrate that much of the outcry against same-sex marriage is based on historically inaccurate understandings of sexuality and marriage. Traditionalists too often assume that heterosexuality and homosexuality are universal ideals, marching unchanged throughout time. However, the ideals of homosexuality and heterosexuality are of very recent vintage, entering common parlance in America in the early twentieth century. Same-sex eroticism between men has been tolerated, if not accepted, in many cultures and during many historic periods. Furthermore, many traditionalists stand on the premise that marriage, defined as the sexual union of one man and one woman in the setting of a nuclear family, has been the prevailing family arrangement throughout western history. Yet, marriage, as it is known in American, did not exist 2,000 (or even 200) years ago. The nuclear family has no valid historical claim to serving as the "bedrock of our civilization." Throughout western history -- and within patriarchal household and family systems -- many different family forms in a variety of household constellations have flourished.

Second, we are reminded that the institution that is at the heart of this struggle is "just" marriage. A number of criticisms have been lodged of marriage and the "nuclear family." The American family, as "our most explicitly gendered institution," has been the chief site that produces and reproduces hierarchical social roles and that divides physical, economic, emotional, and sexual labor according to gendered roles and expectations. The sexual division of labor within families has been "inherently unequal" -- the non-wage earning tasks of caretaking have been placed with (middle-class, white) women while (middle-class, white) men have had the liberty to pursue careers that are personally and economically rewarding. As a consequence, the construct of "family" has been foundational to the separation of the public from the private sphere and to the sequestration of women as caretakers in the domestic domain. For women, the rhetoric of family has been "a wedge in a larger effort to reduce women's freedom and discourage gender equity." For society, the "focus on the family" has allowed a preoccupation with individuals and the marital unit, to the detriment of the constitution of the community. Because marriage and "traditional family values" have been defined in terms of sexual property rights, gay and lesbian couples have been cautioned to carefully consider whether hierarchies of subordination and privilege may be perpetuated by pursuing marital status. Consequently, the article situates itself within a contradiction, a stance common to feminist jurisprudence. While recognizing the tensions inherent in denying gay and lesbian couples equal access to an unjust institution, the article also urges the loosening of the social, legal, economic, political, and religious ties that bind us to perpetuating the privileged status of the spousal dyad.

Third, to shift to a moral analysis, this article suggests that the obsession with family form obscures issues that lie at the heart of sexual morality. It is not the structure of a relationship that makes it worthwhile. Monogamy, for example, can be for good or ill -- the site of human caring or "a prison of abuse." It is not the gender of the participants that renders a relationship moral. The line that needs to be policed is not the fictive boundary between heterosexuality and homosexuality, but the line that separates positive human sexuality from forms of sexuality that are abusive.

From a historical axis, the article will support these propositions by offering a historical survey of sexualities, family forms, and state regulation of sexual expression. From a narrative axis, the article will offer vignettes of the diversity of family forms and sexual expression that have persisted in religious and political domains.

Keywords: marriage equality, same sex, gay, lesbian, constitution, equality, liberty, discrimination, feminist legal theory, feminist jurisprudence, nuclear family, history, sexuality, gender, family, Brown v. Board, Goodridge, Bowers, Lawrence, Romer, Loving v. Virginia, Brooten

JEL Classification: K10, K19, K39, K49

Suggested Citation

Koons, Judith E., 'Just' Married?: Same-Sex Marriage and a History of Family Plurality (August 1, 2005). Michigan Journal of Gender & Law, Vol. 12, No. 1, 2005, Available at SSRN: https://ssrn.com/abstract=1411306

Judith E. Koons (Contact Author)

Barry University School of Law ( email )

6441 E. Colonial Dr.
Orlando, FL 32807
United States

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