By Christian Matheis
By the middle of 2014, legislative, judicial, and electoral actions in 19 U.S. American states have paved the way for nationalized access to marriage for adult couples without restriction to sex or gender. The movement for “gay marriage” or, more inclusively, “marriage equality” has gained broad support in social, political, and economic facets of contemporary U.S. society. Progressive organizations herald the shift as a triumph against cultural homophobia and institutionalized discrimination. Celebrities and politicians clamor to give endorsements for marriage equality, and corporate sponsors flock to hang their banners on what seems the leading civil rights issue of the day. Even certain conservative groups have come to endorse the expansion of marriage, parting ways with their peers over the issue. It seems a sea-change waits just around the corner and everything from domestic, familial intimacy to government tax codes will shift in its tidal wake.
(Photo by Julie Cortez)
Something perhaps very simple or very complex must explain the desire to turn intimate human relationships into government enforced contracts adjudicated by law. Let me spell that out a bit differently. Let us assume that the intimacy of adult relationships involve a crucial aspect of dignity and respect, something worth fundamental protection in public policy. Even so, what do we gain by attempting to protect these relationships through law?
Before I attempt to give a case for the appeal of marriage equality, let me first confess how I came to reconsider the benefits and consequences of the contemporary marriage equality movement.
In November of 2004 I attended a national conference of LGBT organizers and activists in St. Louis, Missouri. The conference came right on the heels of the re-election of George W. Bush and Dick Cheney to the U.S. presidency, the re-installation of their neo-conservative cohort to state and federal governance, and a swath of state-by-state actions intended to instantiate marriage as an institution designed for “one man, one woman.” Needless to say, many felt defeated while others felt a great sense of accomplishment at laying groundwork for a turnaround hopefully to come in 2008. Those well-acquainted with the benefits of long-term movement-building and coalition organizing understood that the expanding neo-conservative bubble would burst and that electoral outcomes of 2004 amounted to a beginning of the turn against the trend that began decades earlier with Nixon and then truly grabbed power under Reagan. At the time I, like many, felt both the defeat and the hope, but had little more than a mediocre ideological critique of marriage as a patriarchal, heterosexist institution intricately woven into capitalist economies.
One afternoon during the conference I shared a brief elevator ride with an activist from Michigan and within the span of about 90 seconds she altered the kinds of questions I would come to ask about marriage equality. We had both just come from a solidarity meeting of several hundred pro-marriage-equality organizers from all over the country who met en masse to compare their stories, celebrate their local successes, and comfort one another following an exhausting period of months. After I lamented the instantiation of an anti-equality marriage ban in Oregon she said quite plainly, “It really is too bad how all of our organizing for marriage handed conservatives this election; we gave them the White House and the rest of the government and they took marriage with them, too.” For want of equality in recognition of our intimate relationships, the marriage equality movement handed the federal, state, and local political base to neo-conservatives interested in transferring public good into private profits.
Prior to her provocation I had simply not given enough thought to the way the issue of marriage equality seemed so bound to human dignity while also serving as a costly token in a much bigger political tug-o-war. My sincere intent to affirm the dignity of intimate relationships fell into tension with the way the issue allowed political regressives to wrestle control of federal, state, and local government. At the time I could not explain why the appeal of marriage so deeply allures so many people that we trade a broader liberatory movement for this particular political issue.
So, what about marriage equality explains its appeal, so much so that wealthy, influential organizations have sought it out at the cost of other political gains? Why have several elite gay and lesbian advocates even sold out the trans* community along the way? Flirting with surface questions about the allure of it all, marriage equality appears as an ideological preference, as something people seek for the sake of inclusion in social and political traditions. To gain full recognition before one’s social community, ze must partner with another person in the traditional commitment. But the colloquial use of “appeal” deserves a bit of a closer look since, foundationally, this may explain both why marriage matters — and why it has worked against us in a moral and political shell game.
Rather than casually ask why marriage equality appeals to so many we do better to rearrange the semantics and ask instead, what sort of appeal does legalized marriage offer? This refers us to consider “appeal” as a technicality of modern law and policy in western industrialized liberal democracies. Ostensibly, marriage allows those enjoined by the marriage contract, couples, the right of appeal against the actions of political institutions. Through marriage, couples gain an injunction against political institutions that unmarried couples cannot claim. Despite the common rhetoric of posing marriage equality as an issue of positive access to rights and benefits, the power of marriage as a public policy issue rests in how it affords couples the ability to legally refuse the force of peers and political institutions who might otherwise interfere in intimate relationships.
Marriage certainly entitles couples to various advantages of recognition — the ability to name the state as a protector of your social relationships with another adult. But, more fundamentally, legally codified marriage provides intimate relationships with the power of a form of legalized dissent — a political claim to refuse other citizens, organizations, and institutions the option of interfering in the privacy of the relationship. Unmarried couples, those without the benefit of the state-sanctioned marriage contract, cannot enjoin their neighbors or, for instance, the Department of Motor Vehicles and Internal Revenue Service to obediently recognize the way they share their lives. Alternatively, the funeral parlor and hospital staff may not violate equal protections secured to married couples, such as in denying spouses access to their loved ones and in making decisions about end-of-life matters.
This sort of obediential recognition, that government agencies and the citizenry at least minimally regard your relationship as you declare it, relies on the ability to refuse intervention through appeal. A couple retains the right to appeal against interference should another individual or collective party interferes or attempts to interfere in a marriage. This right of refusal through legal appeal subsidizes the importance of marriage as a legal necessity in contemporary democracies.
Consider why the power of appeal matters to those who want to feel confident in fair treatment by their government, as much as we may consider that feasible.
It would not make sense to call a political system “fair” if it does not provide for appeal, the right to demand obediential respect from governing agencies. That is, if social institutions operate without the ability to appeal against the use of political powers, to have our claims of unfair treatment heard by our peers and those with judicial wisdom, we would not count a legal system as fair. Practitioners of law and public policy may join political theorists in railing against this interpretation. They would, I think, need to show what else, if not appeal, serves as the basis of some of the oldest communal systems of justice, and what else consistently undergirds many contemporary legal systems. Sure, I merely conjecture here, but it seems that the appeal to community, ruler, court, and jury, predates other organized forms of modern political governance such as legislative and electoral action. Whether or not my armchair political anthropology pans out, as far as I can tell a claim to appeal sets a necessary condition for any political system to count as just, fair, and sensible. Without the attachment to the underlying condition of appeal, I suspect marriage would not likely garner so much pivotal attention in contemporary electoral, judicial, legislative, and economic facets of our society. Or, because we have vested marriage rights with the moral and political force of judicial appeal it provides potent benefits in moral and political matters.
Would you have any good reason to obey a political system that granted no option to appeal its operations, that provided no way to claim foul play by the deciders of laws and policies? No, it seems run afoul of basic intuitions about fair treatment and dignity. Marriage, it seems, appeals to so many because it actually grants appeal specifically to intimate relationships, to something shared by two persons, and not as a right secured to individuals qua individuals. Couples who can marry can jointly make demands for one another, on behalf of each other, through the appellate capacity to refuse what unmarried couples cannot also refuse. The distinction between rights of appeal secured to individuals and those secured to individuals as related deserves a lengthier analysis than I will give it here.
Returning to the complicated arc of the contemporary marriage equality movement, the matter of appeal partly explains how regressives and conservatives have uses the pursuit of marriage equality against progressive political movements. By seeking to crush marriage equality, regressives have found a way to raise a worrisome double-whammy that strikes both at the basic conditions of liberal political rights as well as into the heart of intimate relationships. Morally, we worry about how our neighbors will treat those counted unworthy of equitable access to appeal. Politically, we struggle against the way an entire classification of persons remains separate and unequal on arbitrary grounds. By haunting us with the grim specter of marriage inequality, regressives have kept political progressives and liberationists courted by fear while they (regressives) dismantle the basic economic and political terms of so-called fair play upon which the entire scheme rests in the first place. From the destruction of labor rights to environmental catastrophes and racialized redistricting, just to name a few, the marriage equality movement has made strides at a high price.
(Given the likelihood that stateist governments will not fade away too soon, would we all not end up better off with a system of localized domestic unions through which persons can adopt one another into households or communities, as needed, to ameliorate economic insecurities? I will have to leave this for another time.)
By now you might get the idea that I intend to defend the tradition, institution, and practice of marriage outright. I do not. Nor do I intend to entirely undermine it. We can probably do little more to critique the legal institutionalization of marriage as a bizarre anomaly. Feminists and queer theorists have provided more than sufficient grounds to show the problems with the institution itself historically as a device of oppression. Critics have made the case: what we have won in expanding gay marriage, if it counts as a win, we can better describe as the product of liberal, ambitious, cisgender, white guys with a desire for lofty status and unearned wealth. Even granting these conditions, pragmatically it makes sense that LGBQ couples continue to seek marriage equality as a way to gain the same kind of legal appellate protections as other married couples. So far as we have allowed our political institutions and social traditions to evolve, the legal protection of marriage has grown entrenched along the way. Perhaps not permanently, but for here-and-now it perhaps it functions as more than a problematic affectation of middle-class and upper-class economic wealth; it seems to also function as but one manifestation of claiming political appeal. The worth of that sort of appeal interests those of us who endure the mainstream of a liberal democracy, even when bound up in a device with the dismally abusive history such as marriage.
As much as my provocations above may satisfy questions about the technical benefits of marriage rights as prominent sources of appeal, it still cannot explain why so many people feel the need for this kind of appeal in the first place. What makes us so anxious, even fearful, that we turn to legalized marriage as a source of appeal at all?
I wonder whether marriage rights as a form of appeal appear attractive and gain broad, almost unquestionable support for an even deeper reason than what I have explained so far. Suppose that a specific and difficult-to-notice sort of fear explains the desire to turn intimate human relationships into government enforced contracts adjudicated by law. Does the benefit of legal appeal only make sense as a way to compensate for the fear that we, each of us, do not have what it takes to sustain our relationships without social recognition and political sanction?
Do we fear we do not have what it takes to relate, intimately, in sustainable ways without the force of a marriage contract?
I take it as axiomatic, an inevitable fact of the matter, that all relation involves risk, a gamut of unpredictable, uncertain, and uncontrollable consequences we choose to endure or not. To relate we bear each another amid all sorts of vulnerabilities and the more open the intimacy of a given relationship, the greater the chances of making ourselves susceptible to one another. Nothing about this should seem too surprising, except that the language needed to describe relation seems barely sufficient to elucidate what happens when relating. But I want to make the case that the pursuit of marriage equality as an expansion of rights of appeal, sometimes politically pragmatic and sometimes politically detrimental, may do little to address the misguided underlying fear that we need the force of a stateist government to save us from ourselves. I suspect, though, that the appeal of marriage feels appealing only as a result of living amid incentives and disincentives that aim to sustain a particular false belief that we do not have what it takes to sustain dignified relationships without the force of government authority.
Imagine that the deep attraction to legalized marriage derives only in some minor part from the way it offers political appeal, and appears much more necessary if you fearfully believe you need a bureaucratic force to coerce your compliance and the compliance of your intimate partners. Otherwise, without the bureaucratic force of the government contract, we might betray one another and in doing so take advantage of the vulnerabilities inherent in intimate relations. Our dominant moral traditions and political institutions, wrought with racist, sexist, heterosexist, transphobic, ableist, and religiously persecutory agendas, have imparted conditions in which intimate relations wind up more precarious than we might enjoy in better conditions. Even though all relation involves risk, perhaps we have little conscious understanding of the systematic incentives and disincentives that convince us we will fail at intimate relationships unless the legal institution of marriage provides the force of governmental security.
Consider a comparative critique. In describing the wedding ceremonies of her community in Guatemala, Rigoberta Menchú Tum explains how one grandmother shares the following with the soon-to-wed couple:
“My children, these days to get married you have to sign a silly piece of paper. They say there is a mayor, files, and papers even for our people. We didn’t have any of this before. We got married the way our customs, our ceremonies laid down for us. We didn’t have to sign any bits of paper. Under our ancestors’ laws, men and women didn’t separate, but if a woman was suffering, she could leave her husband. Now, she can’t leave her husband because she’s signed a paper. The Church’s laws and the ladino’s laws are the same in this — you cannot separate. But the Indian feels responsible for every member of his community, and it’s hard for him to accept that, if a woman is suffering, the community can do nothing for her because the law says she cannot leave her husband.”
(Photo by Sarah Falugo)
Even though she primarily aims to criticize the colonization of marriage rituals by European forces, if we consider the implications of the passage it also helps to provoke another impression: the feasibility of intimate commitments supported in community relations without the force of bureaucratic contracts. It could work, as it has all over the world, that the power of appeal endemic to intimate commitments derives from social relations with the community and not from bureaucratic institutions. But marriage equality as we currently know it does not seek that sort of anarchic conception of relation, nor that sort of communal appeal. Perhaps we could even ride marriage practices of their misogynistic tendencies by confronting the deeply rooted anxieties that we cannot cultivate the necessary capabilities to relate in a way that bolsters dignity and diminishes derogation.
Perhaps we will continue to rely on institutionalized marriage until we come to terms with the need for a better understanding of relations qua relations. Unless we can benefit from a broader social discourse about the many different ways to understand relation, the consequences of relating as a whole gamut of laborious benefits and burdens, we can only do to marry one another as contractual objects in a complicated scheme of negotiations. The end of the institution of marriage as a requirement for political solvency may come down to the choice whether to coordinate with one another as married properties, or to endure making one another as we relate. The intimacy of relation, risky and uncertain in all sorts of ways, only seems daunting until you consider whether the ambiguities of such intimacy benefit us more in the long run than rigidly contractual relationships.
I suspect most of us need to consider more deeply what we must make of one another to treat legalized marriage, even instilled with the benefits of judicial appeal, as a source of respite from vulnerabilities. Do we make one another into property? Into commodities? Into seemingly untrustworthy objects of some sort? What kind of creatures trust themselves and one another so little that we believe more in the power of a historically brutal institution than we do in the power of relation in itself?