(MY view) Why gay marriage matters to those who won’t marry!

by John Culhane, Professor of Law, Widener University

Via 365Gay 

Here’s a question: Is the right to marry important if we’re not going to use it?  Setting aside Larry Kramer’s mistimed grumpiness, gays and lesbians and our straight allies were literally or figuratively dancing for joy last week when the first same-sex weddings were performed.

In a typically eloquent and undeniably moving piece for Newsweek, Andrew Sullivan joined in the celebration. Shutting people out of marriage, he wrote, takes a toll on our developing sense of self: “At the very moment you become aware of sex and emotion, you simultaneously know that for you, there is no future coupling, no future family, no future home. In the future, I would be suddenly exiled from what I knew: my family, my friends, every household on television, every end to every romantic movie I’d ever seen. My grandmother crystallized it in classic and slightly cruel English fashion: ‘You’re not the marrying kind,’ she said.

I had an eerily similar conversation with my grandmother, so I get it. But was the younger Andrew Sullivan that he’s calling up in this essay really concerned about the legal right to marry?

The most direct answer to that question has to be “no.” State approval isn’t required in order for us to couple, or to create a family and a home. And presumably the film and literature worlds aren’t blocked from creating, say, Brokeback Mountain or Tales of the City by the state’s refusal to recognize gay couples as such. Kids – even those like me, who end up in law school – don’t really focus on the legal question, anway.

What he sensed – what most of us sensed, accurately – was his coming exclusion from the social norms around home and family. There were very few models to whom we might have aspired, and only an underground and hard-to-find literature presented views of healthy gay men and women. (Is the homosexuality on view in a book like Forster’s “Maurice” a healthy depiction? Discuss.)

Yet there were some gay and lesbian couples, of course, as Sullivan acknowledges toward the end of the piece, referring to long-term, committed couples who were “effectively married.”

So why didn’t those couples serve as an alternative model? I can think of a couple of reasons. First, they weren’t that visible. There were far fewer of them, yes, but I really mean they were invisible. They were “friends” or “roommates” – not spouses, partners, or (in the gay community) “lovers.” This vocabulary of obfuscation was a coerced bargain between the mainstream and the “homosexual” community (to use the nicest term current when Sullivan and I were growing up).

A second and related point is that these couples weren’t conventional. Sullivan is (always was?) an assimilationist, so it’s not surprising that these conventions would have had deep resonance for him, but I’d bet that most kids – wherever in the radical queer to Father-Knows-Best-simulacrum spectrum they ended up as adults – felt the same way. I did, anyway, and I’m much more critical of marriage than Sullivan.

Now, of course, the country is lousy (in a good way) with models of gayness, in all shapes and sizes, in reality and in an ocean of written and visual fiction. (Sometimes comically: I recall listening to a side-splitting review of an LGBT film festival a few years ago where the critic was ridiculing the check-every-box approach to the films chosen.) So – setting aside for a moment the benefits issue – why does Sullivan need marriage now? More to the point, why would a kid growing up today need legal marriage in order to imagine a family-centered future?

We might as well ask why the many LGBT people who have no intention of marrying, ever, were celebrating right along with those who raced to obtain marriage licenses last Sunday.

Because rights matter, whether or not we choose to exercise them. Although comparisons to the issue of interracial marriage are dangerous because of the very different histories of oppression the two groups have faced, here’s one that I think works: Loving v. Virginia, which declared unconstitutional state laws that banned interracial marriage was important not only because of the comparatively few couples it benefited, but because it recognized that the ban was motivated by racism. In the Court’s words: “The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”

That’s right. Similarly, the arguments against marriage equality have by now been revealed as nothing more than a sometimes inarticulate desire to keep same-sex couples out and thereby affirm (weirdly) the superiority of opposite-sex ones. And this brings us back to Sullivan’s essay.

No, the boy he describes so vividly wasn’t thinking about the right to marry, at least not in those terms. But the denial of that right helped to create the social environment he describes, at the same time that it was a product of that environment. Rights matter, almost as much for those who choose not to exercise them as for those who do.

John Culhane is a law professor, a blogger, and a contributor to Slate Magazine. (His “slatest” piece discusses a point of similarity between the actions of the NFL and Big Tobacco.)