Tuesday, March 19, 2013

"...those conceived by passionate, heterosexual coupling"

Life after gay marriage: babies lie with Elmos, Elmos lie with kittycats, etc.

And suddenly, thanks to the Coalition for the Protection of Marriage and their amicus brief, I have a new phrase for my SCOTUS drinking game.

The briefs that are anti-DOMA and Prop 8 have reminded me that marriage is fundamentally a conservative institutions, something I have been trying hard to forget.  The brief from the American Historical Association reminds readers that for our orthodox Protestant ancestors in Colonial America, marriage was a civil institution rather than a religious one.  The AHA also examines the history of couverture (a married woman has no legal status as an individual) and its eventual rejection as a legal doctrine in the US.  The fact that Protestants in early America shaped their ideas of marriage in accordance with their hatred of the Papists and the fact that we have become enlightened enough to allow married women their own legal identities really doesn't leave me feeling that high on the institution of marriage.

On the other side the arguments are far ranging, most seem to reflect a lack of experience with actual LGBT people.  For example the brief submitted by the Concerned Women of America explains why gay people and not "politically powerless," a designation that might allow gay people to be considered a protected class of people.  Apparently, now that we've won a few political victory and President Obama is out and proud as our friend, we don't need any additional protections.  CWA also tries to make the case that LGBT people are rich political elites.  Yes, there are some rich and politically powerful gay people, but the argument that we are all rich and powerful and therefore can't be considered an oppressed class or minority group seems to drift toward popular characterizations of Jews by anti-semites.  Never mind that most statistical data suggests exactly the opposite, that LGBT families are on average poorer than their straight counterparts.

The brief from the Coalition for the Protection of Marriage raises issues that I find more discussion worthy.  One interesting argument raised by the CPM is that "man and woman marriages" produce "natural families" that do not require state intervention or supervision.  The implication is that with the rise of alternative families, the "natural family," which I will call the straight family, will face heightened scrutiny and intervention from the state.  It is certainly true that straight people can establish their families much more easily than other families.  In states with common law marriage, a man and woman can simply hold themselves out as married and they are married.  They will likely need to apply for birth certificates for their children, but no one will challenge them in this process, even if they show up in an ER with no paperwork.

In contrast, gay families depend on the government to legitimize our relationships.  However, I would argue that we only require this government intervention because we are an oppressed minority group whose families are seen an illegitimate.  If we were not a stigmatized group, we could simply use the common law model and declare ourselves families and act accordingly.

I think CPM's argument is much smarter and point to a much deeper philosophical divide than the many varieties of "God hats fags."  CPM hits a libertarian/natural rights/common sense conservatism that is very powerful in American culture, but hopefully it is too subtle to get much attention.

Edited to add below, because I had to leave to go do daycare pickup.

In many of the pro-DOMA/pro-Prop 8 briefs, the children of gay people are afterthoughts, asides, and oddities.  In the minds of the authors of these briefs gay life is a huge dance party of rich white gay may in boxer briefs with a few darker, poorer, female-er gays standing on the sidelines with our kids (precise method of conception, and passion therein, unknown).  The reality is we're here, we're queer with kids, and there will only be more of us in the future.  And our kids, mostly, but not always, conceived by means other than passionate, heterosexual coupling, need some sort of uniform recognition of their parentage.  We need that recognition in all fifty states and we need it to not cost thousands of dollars.  For straight married couples, the state presumes that the possibility of shared biological parentage establishes parentage.  The state does not require mandatory paternity tests to establish parentage, and in cases where a man parents and then finds out he is not actually the biological parent of his child, the law often still views him as a parent, with all the attached rights and responsibilities.  While I'm not comfortable with the idea that marriage should be required to establish parentage, that seems like a move backward, marriage should be one means by which gay couples can establish their intention to parent together.


  1. LOL at your picture and, even better, its caption. I agree with your analysis of the arguments... and am hopeful that none of the arguments are so good as to sway what is needed for so many LGBT families.

  2. I'm a little too excited that SCOTUS will be releasing same-day audio of the arguments. Huzzah!