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| Picture source: http://bit.ly/fGelu2 |
Gabrielle Kozik
WC: 1910
In a kind of legal taxonomy, the United States classifies its citizens. Both historically and presently, United States laws that are contingent on race, gender, or sexuality inevitably sort people into groups and create a hierarchy among them. An incredible example of this phenomenon can be seen in both past and present marriage law that seems to without fail generate heated debate. I suggest that this is because the American people hold the “fundamental right” to marry very near and dear to their hearts. And why? Because, historically, marriage is synonymous with full rights and, effectively, citizenship.
--> The Effective Meaning of the Institution of Marriage
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| What exactly is the American institution of marriage? Picture source: http://bit.ly/5z3Jyq |
The relationship between marriage, society, and the individual cannot be fully understood until the meaning of marriage as a means of legitimization is understood. Consider that marriage is perhaps not simply the union of a man and woman. But rather, as Nancy Cott suggests, it is a “legal status – one that local, state, and federal governments in the United States have established and that does not itself exist without the state” (78). Marriage is the legal and social stamp of approval that has been created and maintained by the United States government. That is, the meaning of marriage and the laws that regulate the institution of marriage are determined by the American democracy. By regulating who can marry whom, “the state is actively involved in creating social and civic relations for both men and women through legal marriages” (Cott 79). Current marriage law as defined by the United States government and the American democracy effectively maintains the nature of marriage to be heteronormative.
Heteronormativity: "The heteronormative view is that physical sex, gender identity, and gender roles should, in any given person, align to either all-male or all-female cultural norms" (Iamnothing).
picture source: http://bit.ly/gGa4VW
Because marriage law only sanctions monogamous, heterosexual relationships with clear male/female gender roles, there is a following assumption that all relationships should naturally tend to be monogamous, heterosexual, and gendered; any alternative inclination is abnormal (“Heteronormativity”). This heteronormative bias effectively creates an “ideal” sexual norm and places it at the top of a hierarchy of paths of sexual expression.
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A political cartoonist creates a mock hierarchy called the "codification of marriage." Picture source:http://bit.ly/f6rVkW |
The existence of this hierarchical phenomenon gives credence to the notion that marriage law and the meaning of marriage itself are interacting social constructions. Alarmingly, however, this notion then begs the question whether the heteronormative construction of marriage is justifiable; because doesn’t it follow that heteronormativity creates “normal” and “abnormal” classifications that discriminate against those who do not conform to the prevailing construction of marriage? Meave MacLysight's The Dual Effect of Marriage in Society and Law resounds with this theme, putting it succinctly that "granting marriage to one group but not another reaffirms the superiority of the first group at the expense of the second." This line of logic fires the controversy surrounding the debate regarding the institution of marriage because if the meaning of marriage is a social construction, it must be arbitrary and changeable.
--> Marriage is Synonymous with Citizenship
Incidentally, when further critically examined, marriage reveals itself to be the crux of citizenship. Cott holds that we should be especially aware of “marriage as an institution linked to citizenship,” meaning that perhaps a person’s place within the institution of marriage affects not only his or her relationship with another person, but also affects his or her place within American society (80). Consider that marriage is the induction of an individual as a functional member of the American public. Marriage legitimizes a relationship between two people and is widely considered the basis of the family unit – the building block of society.
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| A government issued marriage license "creates marriage" by endorsing a relationship Picture source: http://bit.ly/g2cUq4 |
It is noteworthy that the opposite is also true - family units that exist outside of marriage are often bastardized and are not widely acknowledged as “family units.” This illustrates a direct, intrinsic relationship between law and social norms: by defining who is eligible for marriage, the state also determines who is eligible for a kind of “citizenship.”
--> Historical Evidence that Marriage and Acceptance as a Member of American Society, or "Citizenship," are Directly Related
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| Source:http://bit.ly/huZsLu |
History quickly supports the existence of this direct relationship between being eligible for marriage and attaining “citizenship”. We can see this phenomenal relationship between marriage status and “citizenship” by examining the place of interracial relationships historically within the institution of marriage and the contemporary level of acceptance of interracial couples as participating members of American society. Until the 1967 ruling in Loving v. Virginia, interracial marriage bans known as anti-miscegenation, or miscegenation, laws existed. The rationale behind these bans seems laughable today: that racial blending was “unnatural”, that interracial marriage would be inconsistent with the standing definition of marriage, and that miscegenation laws “were constitutional because they covered all racial groups equally” (Pascoe 50). When these pre-Loving sentiments existed, they had multiple effects on interracial groups beyond the immediate intended effect of miscegenation law to prohibit interracial marriage. Miscegenation laws inevitably defined and enforced racial categories that were unequal, thereby defining and enforcing a racial hierarchy. When constructing marriage, “judges and juries [believed] that setting racial boundaries was crucial to the maintenance of [an] ordered society” (Pascoe 51). So anti-miscegenation spelled racial inequality - which inevitably created a hierarchy with minority groups at the bottom because they had less allowance within the institution of marriage. This forced nonwhite groups into second-class citizenry until 1967 when the Supreme Court cited this injustice in Loving v. Virginia, ruling unanimously that miscegenation laws were “directly subversive of the principle of equality at the heart of the Fourteenth Amendment and that the miscegenation laws were “designed to maintain White Supremacy” (Pascoe 67).
Although race is no longer a legally valid basis on which to discriminate, social norms have not yet caught up to the “colorblindness” of the law. In her final paper, Maeve MacLysaght suggests that unjustified racial inequality should be addressed by rejecting only the hierarchy itself, not necessarily by destroying racial distinctions. She writes about her idea “that society should seek to redefine race, not abolish it entirely; intersectionality and hybridity, not homogeny and sterilization, are the keys to cultural evolution.” That is, when our social racial norms match the law, we will have equality among all racial groups instead of different racial categories sorted into levels on an understood hierarchy.
These graphs are a lovely illustration of the correlation betwen social norms and marriage law. Is the trend in rising approval of interracial marriage as of the 1967 decision in Loving v. Virginia a coincidence? Or could there be a causal relationship between the legal definition of marriage and the socially acceptable parameters of a relationship?
Source for graphs:http://bit.ly/aodnRN
--> A Case for Same-sex Marriage on the Grounds that Marriage and Acceptance as a Member of American Society, or "Citizenship," are Directly Related
Despite this landmark in marriage law per the 14th Amendment, restrictions on marriage for other minority groups still exist. Today, homosexual couples are denied entry into the institution of marriage and, remarkably, the argument against same sex marriage is almost perfectly parallel to the arguments that defended miscegenation laws. The most cited grounds are that homosexual marriage is “unnatural” because it is non-reproductive and that same-sex marriage does not conform to the standing definition of marriage.
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| The state-sanctioned nuclear family unit: the reproductive marriage between one man and one woman Source:http://bit.ly/idc7y7 |
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| Same-sex couples: not state sanctioned, excluded from marriage, "unnatural", and non-reproductive
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When confronted by the precedent set by Loving v. Virginia, opponents of same-sex marriage pose the counterargument, more eloquently summarized by William Eskridge and Nan Hunter, that “appellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex” (801). I, however, argue that the current ban on same-sex marriage is in fact discriminatory because of the hierarchy it creates. In the same way anti-miscegenation law created superior and subordinate groups, the same-sex marriage ban does. By withholding marriage rights from a particular group, the United States government withholds an individual’s choice to participate in the legitimization of a relationship that is marriage. Homosexuals are thus made second-class citizens by the necessarily hierarchical design of specifying marriage rights on the basis of sexuality the same way minority groups were marginalized by marriage law on the basis of race. Perhaps this is the reason “our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children” - because the heterosexual is at the top of the hierarchy (Eskridge, Hunter 802).
Source:http://bit.ly/hnHdq3
We can see this existing hierarchy within current events and contemporary zeitgeist regarding differences in legal recognition among groups of different sexual orientation. Examining the recent 1996 decision in Romer v. Evans that invalidated the clause in the Colorado state constitution that disqualified groups of different sexual orientation from Protected class status, it becomes obvious that glaring inequalities exist among groups of different sexual orientation. The court ruled that such an amendment “imposes a special disability upon [groups of non-heterosexual orientation]. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint”. This “disability” is plainly synonymous with second-class status on a hierarchy of sexual orientation. It is especially noteworthy that although Romer v. Evans ruled against discrimination on the basis of sexual orientation, the case actually reinforced the hierarchy among groups of different sexual orientation.
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| The Supreme Court of the United States Source:http://bit.ly/g6v9g5 |
The discussion in the Romer v. Evans decision reveals the beginning of an important precedent: the Supreme Court of the United States places groups of various sexual orientations under “rational basis” scrutiny. This means that only the lowest level of scrutiny is applied when defending the rights of groups of different sexual orientations against government interest. By awarding such groups only the lowest level of scrutiny, the Supreme Court effectively leaves these groups at the bottom of the social hierarchy. Contrast this with the “strict scrutiny” applied to matters involving groups of race or national origin in which the United States government must demonstrate compelling evidence to infringe upon the rights of members of such groups. It is clear that by assigning different levels of scrutiny depending on the type of identity characteristics that define a group, the United States Supreme Court assigns unequal treatment and thus unequal rights to different groups. From this, a hierarchy is constructed and maintained.
There is irresistible evidence that the laws that define the institution of marriage also organize a hierarchy among groups of people categorized according to arbitrary identity characteristics. Perhaps it is this hierarchy that makes the words “sodomy” or “miscegenation” so negatively charged. Perhaps, in a future ruling, same-sex marriage will follow the precedent that interracial marriage has. And perhaps the arguments that support the gay marriage ban will seem as absurd as those of miscegenation do today. Perhaps.
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| Source:http://bit.ly/fHiRdu |
WORKS CITED
Cott, Nancy. "Justice for All? Marriage and Deprivation of Citizenship in the United States." Justice and Injustice in Law and Legal Theory. Ed. Austin Sarat and Thomas R. Kearns. Ann Arbor, MI: The University of Michigan Press, 1998. 77-97.
Eskridge, William and Nan Hunter. Gender, Law and Sexuality. New York: The Foundation Press, 1997 and 2009.
"Heteronormativity." Reference.com. Dictionary.com, LLC, 2010. Web. <http://www.reference.com/browse/Heteronormativity>.
Pascoe, Peggy. "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America." Journal of American History 83 (June 1996):44-69.
Romer v. Evans 517 U.S. 620 (1996)
