THE TROUBLE WITH NORMAL BY MICHAEL WARNER THE EVOLUTION OF THE GAY MARRIAGE DEBATE 1999-2009 AND
GAY MARRIAGE = STATE REGULATED SEX? Warner makes the argument that gay marriage would result in equality for some but the denial of rights to others -- essentially a continuation of the current dual-class society . His argument stems from the Bowers v. Hardwick Supreme Court decision that upheld anti-sodomy laws in many states across the US. But Bowers v. Hardwick no longer applies to this argument.
IN THE DECADE SINCE THE TROUBLE WITH NORMAL 'S PUBLICATION: Lawrence v. Texas
United States Supreme Court decision in June 2003
Struck down state laws banning the practice of sodomy between consenting same-sex or heterosexual adults in private
Fundamentally altered the grounds of the state to legislate sex acts between adults
Lawrence v. Texas The legal arguments for striking down the sodomy ban were twofold -- both of which hold important implications for state regulation of consensual adult relationships Due Process The principle that the government must respect all of the legal rights that are owed to a person under the law, instead of respecting only some of those rights.
Lawrence v. Texas applied "substantive due process," which enabled the plaintiffs to argue that they had been denied a constitutionally-based liberty (a right to privacy) and that sodomy laws limited their full rights as citizens by intruding on their consensual private acts
Equal Protection The 14 th Amendment states that "no state shall … deny to any person within its jurisdiction the full protection of the law." Despite the fact that the Declaration of Independence asserted that "all men are created equal," there were no provisions in place to ensure that all men are treated equal[ly]. The equal protection clause gave the judiciary the power to enforce that principle against the states.
Justice Sandra Day O'Connor moved to strike down sodomy laws based on equal protection -- and in doing so, provided a legal argument for striking down laws that prohibited against a group, rather than an act. (Texas' sodomy law was homosexuals-only.)
In her opinion, she noted that this element of equal protection created an opportunity for recognition of same-sex couples, if the states banning marriage for gays also banned domestic partnerships and civil unions. She reasoned that laws banning same-sex marriage were permissible when they intended to "preserve" traditional marriage, but if the laws only served to bar homosexuals from rights that would be otherwise available (such as through civil unions) then they would be unconstitutional under equal protection.
Lawrence v. Texas
IN THE DECADE SINCE THE TROUBLE WITH NORMAL 'S PUBLICATION:
Massachusetts and Connecticut fully recognize gay marriage
Vermont, New Jersey, and New Hampshire have civil unions that are explicitly defined as offering the same benefits as marriage under state law
Maine, Hawaii, DC, Oregon, Washington, and Maryland have same-sex domestic partnerships which offer some, not all, of the benefits of marriage
Rhode Island and New York recognize same-sex marriages performed in different states
CIVIL UNIONS AND DOMESTIC PARTNERSHIPS One of Warner's central arguments against state-sanctioned gay marriage is that it would create further obstacles to equality for the statuses conferred by legal marriage . However, he frequently mentions civil unions and domestic partnerships , as well as international examples like France's PACS , as avenues toward equality. Ten years later, where do we stand?
CIVIL UNIONS AND DOMESTIC PARTNERSHIPS (Yes, it's been ten years , but eight of those were the Bush administration and iron-clad right-wing conservative rule in Congress. Obama can't fix everything THIS SECOND.) Many state constitutional amendments that ban recognition of same-sex couples also ban domestic partnership benefits for heterosexual couples -- making marriage the only means of attaining certain legal statuses for heterosexuals, and ruling out the possibility of those statuses at all for gay couples.
So when it comes to civil unions and domestic partnerships , progress for the gays tends to be progress for the straights , too. And when the gays lose equal rights , so do many straights. But Warner's prediction that gay marriage would result in a deprived under-class didn't entirely come to bear -- in fact, the opposite turned out to be true. The ban on gay unions caught heterosexuals in the crossfire.
AND STILL ... There is no all-inclusive federal employment non-discrimination act. The ENDA currently in congressional committee does not provide protection for trans-people or the genderqueer, and mainstream gay and lesbian groups like the HRC have stepped away from their support of an inclusive ENDA, focusing on getting a bare-bones act passed first -- promising that reforms will come later. There is no federal hate crimes legislation for crimes against homosexuals. President Obama has promised to pass one … at some point. The Defense of Marriage Act still bars federal rights for same-sex unions. President Obama has also promised to repeal DOMA … "when the time is right."
BONUS EXCITING EQUALITY MOMENT OF THE DAY On Monday, Representative Ellen Tauscher (D-CA) introduced legislation that would repeal the Clinton-era "Don't Ask, Don't Tell" policy that bans gays and lesbians from serving in the military.