The Game, Not the Name

How the New Jersey Supreme Court Decision Offers the Queer Community a Way Out of the Marriage Trap — If We’re Willing to Take It

by MARK GABRISH CONLAN

Copyright © 2006 by Mark Gabrish Conlan for Zenger’s Newsmagazine

Noncommercial reproduction encouraged if complete and with attribution, (The first three pages, up to the subheading “Marriage’s Heterosexual History,” may be reproduced without the rest if a shorter version is desired.)

On October 25, 2006 the Supreme Court of the state of New Jersey handed down a decision in a same-sex marriage lawsuit that provides the Queer community a potential way out of the political and social trap its leaders have dug themselves into by insisting not only that our relationships be recognized legally but that they be given the name “marriage.” The court ruled unanimously that Gay and Lesbian couples in New Jersey have a right under the state’s constitution to exactly the same legal rights, benefits and responsibilities as married heterosexual couples. The only thing that divided the justices was whether the relationships should be called “marriages.” By a 4-3 vote, the court ruled that Gay and Lesbian couples in New Jersey did not have a constitutional right to the word “marriage” as a legal definition, but they DO have a right to the same legal benefits as married couples.

At first glance, this may seem like a defeat — or at best a qualified victory — for the Queer community. But coming after a long losing streak for the same-sex marriage movement both at the ballot box — where every, repeat EVERY, state whose people have had a chance to vote on whether the term “marriage” should be extended to same-sex couples has overwhelmingly voted it down — and in other courts, it seemed like a breath of fresh air even though it essentially put the marriage equality movement back where it was in 1999, when the Supreme Court of Vermont made the same sort of ruling and the Vermont legislature and then-Governor Howard Dean responded by passing the first civil union law in the United States.

I would argue that the New Jersey court majority has offered the Queer community a compromise position we should eagerly accept. I think Justice Barry Albin, who wrote the majority opinion, is absolutely right when he says that “the traditions, history and conscience of the people of this state” — and, I would add, of the United States in general — preclude any acceptance of the idea that same-sex couples have a constitutional right to the term “marriage.” The entire worldwide history of marriage as an institution, despite the many ways in which it has altered and evolved over the centuries, has been that of a union of opposite-gender partners. The traditions and mores of the United States regarding marriage have also defined it exclusively as a recognition of a relationship between opposite-gender partners. Certain factors built into the social understanding of what “marriage” means in the U.S., including the expectation that the partners will have sex exclusively with each other and that they have at least the physical possibility of bearing a child without outside help, render “marriage” an inaccurate term to apply to same-gender relationships, especially between males.

What’s more, even if it were theoretically possible to imagine a redefinition of “marriage” sufficiently sweeping to render the term applicable to same-sex couples, only a tiny minority of Americans would support such a redefinition. Virtually every poll taken in the U.S. on the same-sex marriage issue shows similar results to these (from the Time/CNN poll taken shortly before the 2004 election): only 25 percent of all Americans support the right of same-sex partners to marry; 37 percent oppose any legal recognition of same-sex relationships at all; and 35 percent oppose same-sex marriage but are willing to support an alternative way of legally recognizing same-sex relationships (domestic partnerships or civil unions) and giving same-sex partners all or some of the rights of married people.

Queer political strategists like to refer to that 35 percent as the “movable middle” in hopes that they can be “moved” into broadening their support for recognizing same-gender relationships into an endorsement of same-sex marriage. Instead, the Queer community’s insistence on using the M-word has moved that “movable middle” solidly into the same camp as the religious Right. The history of so-called “defense of marriage” initiatives on state ballots proves that. EVERY time U.S. voters have been asked to amend their state constitutions to ban legal recognition of same-sex marriages, they have done so by landslide margins. (The closest margin for such a vote was in Oregon in 2004, where the ban on same-sex marriage passed by “only” 12 points, 56 to 44 percent.)

Same-sex marriage has been consistently defeated at the polls regardless of whether or not the overall politics of the state voting on it were “red” or “blue,” regardless of whether it went for a Democrat or a Republican for president or governor, regardless of its reputation for cultural liberalism or traditional values — and, most ominously for the same-sex marriage movement, the initiatives passed whether or not they banned domestic partnership and civil union laws for same-sex couples as well as marriage. This suggests that for that 35 percent in the so-called “movable middle,” preserving marriage as an exclusively heterosexual institution is more important than granting Gay and Lesbian couples any legal recognition at all.

It is time for the Queer community to face political and social realities and recognize that in the United States at the dawn of the 21st century same-sex marriage is a political impossibility, and the continued pursuit of it can only do harm to the overall Queer movement in general and provoke backlashes that will leave us with even fewer rights than we have now. It is time for us to acknowledge that the compromise the New Jersey court majority made — the one I call “the game, not the name,” i.e., all the rights, benefits and responsibilities of marriage without the actual word — represents the outermost limit of political possibility for the legal recognition of Queer relationships in the United States today. To that end, I would recommend the following as a long-term strategy for relationship rights:

1) The Queer community in the United States must firmly, flatly, finally and irrevocably renounce any demand or aspiration to the legal recognition of its relationships under the name “marriage.”

2) To make that renunciation firm, flat, final and irrevocable, the Queer community should cease opposing the Federal Marriage Amendment, which would write into the U.S. Constitution a definition of marriage as a relationship between one man and one woman. Instead, we should lobby to amend the amendment to make sure it allows state legislatures to pass domestic partnership or civil union laws, and allows state courts to construe their own state constitutions to require their legislatures to grant rights to same-sex couples comparable to those of married couples.

3) The Queer community should work with legislators in states likely to be sympathetic to craft domestic-partner and civil-union laws that acknowledge both the important ways in which same-sex relationships resemble heterosexual marriages and the important ways in which they differ. The idea is to craft a parallel institution that would be, not “separate but equal” — as marriage advocates within the Queer community often sneeringly characterize civil unions — but “equal but unique.”

4) As a long-term lobbying strategy, once a critical mass of states has domestic-partner or civil-union laws, the Queer community should begin a campaign to persuade Congress to amend the 1996 Defense of Marriage Act to provide that couples whose relationships are legally recognized under domestic-partnership or civil-union laws in their home states should be treated identically to married couples for purposes of federal rights and benefits. Once achieved, this would give functional equality between same-sex and opposite-sex couples under federal law, which absent such a change at the federal level state domestic-partner and civil-union laws cannot do (one of the points same-sex marriage advocates make ad infinitum).

5) The Congressional lobbying campaign should also include a proposal along the lines of the current Permanent Partners Immigration Act, which would allow U.S. citizens residing in a state that has a domestic-partner or civil-union law the right to sponsor a foreign partner on the same basis as a binational married heterosexual couple.

What this strategy seeks to do is offer the American people in general and the “movable middle” (which, despite that term, is IMMOVABLE in its opposition to same-sex marriage by that name) in particular a sort of grand compromise. We give up any claim on the institution of marriage and in return we receive a hunting license to build our relationship rights through the political process (and, where applicable, in state courts) towards the long-term goal of FUNCTIONAL equality through parallel “equal but unique” institutions specifically crafted to recognize our relationships.

Marriage’s Heterosexual History

As Friedrich Engels noted in his 19th century classic The Origins of the Family, Private Property and the State, marriage as an institution was the product of the change from matrilineal to patrilineal lines of inheritance. Its origins were inherently bound up with the establishment of the patriarchy and the need for a patriarchial society to know with certainty who a particular child’s father is. Since it is women who get pregnant and give birth, it’s obvious who a particular child’s mother is — but, absent some enforcing institution that limits women’s ability to express their sexuality and essentially makes a woman’s body the sexual property of one and only one man, there is no way to be sure enough of the identity of the father to create a system of male-to-male inheritance.

Marriage was created to fulfill that function. From the outset, the defining characteristic of marriage has been that the woman belongs to the man. Her body belongs exclusively to her husband, and she may neither refuse him sexually nor have sex with anyone else. As marriage was originally defined, a woman could only marry one man but a man might marry as many women as he could support financially — which a) in practice made polygamy a luxury for rich males, and b) was indicative of the sexist assumption at the root of marriage as an institution: that it was the responsibility of the husband to support his wife (or wives) financially and the idea of a woman, especially a married woman, living an independent economic existence was unthinkable.

Under marriage as originally defined, upon marriage a woman’s property automatically became her husband’s, to do with as he saw fit. A married woman had no civil or legal rights except those her husband chose to give her. In traditional cultures, women frequently even did not have the choice of whether or not to get married, or to whom; their marital futures were either sold outright or negotiated between their own and their husband’s families. In these and many other ways, traditional marriage strongly resembled human slavery.

One of the ironies of the debate over same-sex marriage is the oft-made claim by same-sex marriage opponents that “the Bible defines marriage as between one man and one woman.” Leaving aside the question of whether, and why, the holy book of one specific religious tradition should determine U.S. public policy, the fact is that the Bible does NOT define marriage as between one man and one woman. The Bible defines marriage the way it was traditionally defined in the early “civilizations” that emerged with the rise of patriarchy: as the union of one man and as many women as he could support financially.

The idea that marriage should be MUTUALLY monogamous is a relatively recent change, stemming from 1,600 years ago when Christianity was established as the official state religion in the latter days of the Roman Empire. It was later adopted by Judaism but, significantly, NOT by the third great religion derived from the Abrahamic tradition, Islam. In some Muslim countries, men are still allowed to marry as many women as they can support financially; in others, men are limited to four wives and have to divorce one if they wish to take a fifth. The irony here is that, despite the oft-expressed fear of same-sex marriage opponents that if we allow same-sex couples to marry we will be opening the door to polygamists, in fact the polygamists have a far better claim to marriage on traditional, historical, religious and cultural grounds than we do.

Obviously, marriage as it exists today bears little or no relation to the “traditional” variety described above. Yet what is staggering is how recent most of the reforms are. It was not until the 19th century that the right of people to select their own partners for marriage instead of having those decisions made for them was generally accepted. It was not until the early 20th century that married women finally were allowed to own property in their own names. (Interestingly, Muhammad called for women to have this right 1,400 years before it became standard practice in Christendom, but the Muslim world today lags well behind the Judeo-Christian West on this one.) It was not until the 1940’s that American employers, largely to meet their personpower needs during World War II, started dropping their formal policies of refusing to hire married women. And, most shockingly of all, it was not until the late 1970’s that California’s rape laws were amended so that a married woman no longer had to have sex with her husband any time he wanted to, whether she wanted to or not.

Yet for all the changes in marriage as an institution over the centuries, one aspect has remained constant: it has always been heterosexual. Despite the efforts of Queer historians (most notably the late John Boswell), no one has ever unearthed a society or a major religion that had a long-term tradition of marrying same-gender partners. Nor is there any particular reason why there should be. Until 1865, when the term “homosexual” was coined to describe a mental illness, humans regarded opposite-sex partners as the default position for human sexuality. Same-sex sexual expression was regarded as something one DID, not something one was. Homosexual activity in humans is no doubt as old as the human race itself, but the idea of a homosexual IDENTITY is a relatively new social construct, and one I would regard as irreconcilable with marriage as centuries of history and tradition, albeit reformed, have defined it.

Procreation DOES Matter

One of the most common arguments against the legal recognition of same-sex marriage has to do with procreation. Basic mammalian biology requires the involvement of both male and female to produce offspring. Therefore, a same-sex couple, no matter how emotionally committed they are to each other and no matter how good they may be, potentially or actually, as parents, cannot create children without outside help. Same-sex marriage opponents frequently argue that, because it takes a man and a woman to create a child, that serves as a logical reason to restrict marriage to heterosexual couples only.

Supporters of same-sex marriage reply to this argument in various ways. Sometimes they point out that the law allows any opposite-sex couple who fall within the other basic qualifications (i.e., neither is currently married to someone else, they are not impermissibly closely related by blood, etc.) to marry even though they may be unable, due to age, physical disability or any other biological reason, to procreate. Indeed, since the U.S. Supreme Court ruling in Griswold v. Connecticut (1965), U.S. law has protected the right of married heterosexuals to choose NOT to procreate and to have access to drugs, barriers and other devices to allow them to have an active sex life while reducing their likelihood of procreating to nearly zero. But the most common argument made by same-sex marriage advocates against the idea that procreation is a rational reason to restrict marriage to heterosexuals is to point out that same-sex couples are already raising children.

There are three ways in which a same-sex couple can be parents. First, they can adopt. Second, if they are both women, either or both of them can be artificially inseminated with sperm from a male donor. Third, and probably the most common, one or both of them can bring to the relationship a child they had already conceived and (if female) born through normal heterosexual means in a previous relationship with an opposite-sex partner before they definitively identified themselves as Gay or Lesbian. Interestingly, all three of these means are represented among the 14 plaintiffs — five Lesbian couples and two Gay male couples — in the New Jersey lawsuit.

But those three means all have one thing in common: they all require outside help for the child actually to exist. The same-sex couple who adopt (in states enlightened enough to permit them to) are dependent for their child’s existence on the unrelated pair of heterosexuals who conceived him or her in the first place and the female half of this pair who carried the pregnancy to term and then gave up the baby, voluntarily or otherwise. The Lesbians who use artificial insemination are dependent on the male sperm donor, and the same-sex partners who bring children into their relationship from former heterosexual pairings are dependent on their opposite-sex former partners, not only to have helped bring their child into existence but (often) for permission to raise the child in a household headed by a same-sex couple.

None of this necessarily makes a difference in terms of parenting outcomes. As the New Jersey court correctly recognized, the consensus in social science is that children do best when they are raised in a home with two adults — but it doesn’t matter whether either or both of the adults are the child’s biological parents or whether they are of opposite or the same gender. It DOES, however, make the internal environment of the home distinctly different — and in a society still largely accepting of anti-Queer prejudice, it renders the children vulnerable to being teased, ostracized and abused by their peers for something over which they have no control. The fact that a child being raised in a same-sex household cannot possibly be the biological offspring of BOTH partners (though both partners can be what New Jersey law awkwardly calls “psychological parents”) and the additional strains on a child being raised in a same-sex household over an opposite-sex one both make the term “marriage” rather dubious in describing the relationship between the adult same-sex partners raising a child this way.

Men Are Different

One of the not-so-dirty little secrets of the same-sex marriage movement is it is primarily a Lesbian phenomenon. As noted above, of the seven couples who participated as plaintiffs in the New Jersey lawsuit, five are women and only two are men. Of the over 4,000 couples who got married in San Francisco during the one-month “window” from February to March 2004, when Mayor Gavin Newsom illegally ordered his city’s registry to issue marriage licenses to same-gender applicants, two-thirds of them were Lesbian couples. This imbalance is even more striking when laid next to decades of survey data showing that there are twice as many men who self-identify as Gay as women who self-identify as Lesbian.

As a Gay man, I feel qualified to discuss the marriage issue as it impacts and is impacted by Gay male sexuality but not as it impacts and is impacted by Lesbian sexuality. I accept the broad outlines of the “men are from Mars, women are from Venus” theory that men and women are fundamentally different in terms of how they manage their sexuality and the psychological fulfillments they get from it. Basically, this theory holds that men are more likely than women to detach sex from emotion, more likely to seek sexual outlets outside of their primary relationship, less likely to insist on “love” as a criterion for whether or not to have sex with a particular person and more likely to live the lifestyle envisioned by the (male) singer-songwriter Stephen Stills when he sang, “If you can’t be with the one you love/Love the one you’re with.”

Obviously, like all sweeping generalizations about human behavior, this one has many exceptions — but I think it’s basically true, and the experience of Gay men in particular proves it. One classic scientific technique is called “isolating the variable” — studying a phenomenon by looking at it in the absence of other aspects of reality that might get in the way. One obvious way to test the theory that men are more detached from emotion in their sexual expression than women would be to look at communities of men who don’t have to worry about the sexual and emotional demands of women, and women who don’t have to worry about the sexual and emotional demands of men — in other words, totally Gay men and totally Lesbian women.

In the case of men, at least, I think the overall ways Gay men express and manage their sexuality confirm the theory. Gay men are more likely than heterosexuals or Lesbians to have sex outside a committed relationship, to have multiple sex partners, to have sex with other partners besides their primary one, and — most relevantly for the same-sex marriage issue — to build into their relationships ways of acknowledging that they will have other sex partners and managing these extrarelational activities to minimize their potential for harming the primary relationship. The expectation of mutual monogamy that is at the heart of modern heterosexual marriage (though often honored more in the breach than the observance) simply doesn’t apply to many — I daresay most — Gay male couples.

The ascendancy of same-sex marriage as an issue of paramount importance to the political leadership of the Queer community is a trailing indicator of a far-reaching change in that leadership that began in the 1980’s, Before then, the Queer leadership was almost exclusively male — and often openly and offensively sexist towards women who tried to gain admittance — and it tended to focus on issues of primary importance to men: the protection of Gay bars, bathhouses and other cruising spaces; confronting police entrapment of Gay men cruising each other for casual sex; protection against Gay-bashing (not just to preserve the overall physical safety of Queers but specifically to protect Gay men in public cruising areas from being targeted and beaten or killed); as well as issues like antidiscrimination protection that affected Gay men and Lesbians equally. Issues of specific concern to Lesbians, such as maintaining custody of their children after they ended straight marriages or relationships and came out, tended to be ignored or sloughed off.

That all changed in the 1980’s, when the AIDS epidemic virtually wiped out a generation of Gay male leaders. In the 1970’s, the most prominent Gay male leaders had also tended to be the most flamboyant, the most obviously “out,” and the ones most likely to involve themselves in the riskiest behaviors for AIDS: casual unprotected sex with multiple partners, use of recreational drugs, frequent sexually-transmitted infections and antibiotic treatments for them and involvement in the so-called “fast-lane” lifestyle. As they began dying en masse, Lesbians managed to win community leadership positions because they were largely unscathed by the AIDS epidemic and therefore they were the ones able to continue the movement.

Long after the AIDS epidemic peaked and the syndrome became endemic — not epidemic — among Queer men, Lesbians remained in charge of many community organizations. In cities like San Diego, which fell behind more progressive cities with larger Queer populations, Lesbians, not Gay men, were the first Queers to win elective office. The National Gay and Lesbian Task Force had seven women executive directors in a row from the 1980’s through the 1990’s before finally hiring a man for that position in the early 2000’s. I would argue that this shift from male to female Queer community leadership, brought apart by the decimation of the male leadership due to AIDS and the need for the remaining men to confront their own sexism and admit women to leadership positions to maintain the movement at all, helped bring about the change in Queer issue priorities so that women’s issues moved to the forefront of the agenda — and marriage, an issue of greater relevance to Lesbians than to Gay men, became a principal community demand for this reason.

Equal but Unique

My argument here is that not only is the realization of same-sex marriage, so-called, impossible in the United States under current and likely future political conditions, but even if it were, “marriage” as traditionally defined would be an awkward fit for many same-sex couples, particularly male ones. Marriage comes with the expectation that the partners will procreate with each other; same-sex couples can’t do that without help from outside. Modern marriage comes with the expectation of mutual monogamy; Gay male couples in particular frequently structure their relationships in ways that allow for outside sexual experiences. Marriage, from the get-go, has been built on the expectation that one partner, the woman, is inferior to the man; same-sex relationships are based on mutual equality.

One of the ironies of the same-sex marriage movement is that all those 1,200-plus government and private-sector benefits same-sex marriage advocates rattle off as the reason they need marriage rights were created on the basis of assumptions that NEVER applied to how most same-sex couples live and are increasingly at variance with the way most opposite-sex couples live. The benefits were based on the idea that government should support relationships likely to produce children: giving the parents more money to raise their children by granting them income-tax deductions and allowing employers to deduct the costs of providing them and their children health care. The marriage benefits were also designed around the assumption that the man would be the breadwinner and the woman the stay-at-home parent; most same-sex couples have always assumed that both parties would work, and with the steady decline in U.S. wages since 1973 most married heterosexuals today find that they too must both work.

If anything, a broader look at the marriage issue reveals the utter absurdity of a society that insists on allocating tax advantages and access to health care based on whether people are in a committed relationship and whether they are raising children. The ascendancy of marriage as an issue for the Queer leadership shows how far it has drifted from the progressive roots of the Queer movement. A truly progressive Queer community would be fighting for universal access to health care, not for admission to the class of people given health coverage through their employers while more and more Americans lose coverage altogether. It would be fighting against the blatant giveaways to corporate America represented by so-called “free trade” agreements and the attack on the U.S. middle class through outsourcing. A truly progressive Queer movement would also seek to broaden the kinds of family structures offered legal recognition instead of attempting to fit all Queers into the Procrustean bed of a two-person partnership modeled on a heterosexually defined institution — marriage — built on assumptions and protocols of dubious applicability to many Queers.

If the Queer community does not cut its losses on the marriage issue — if it continues to insist on chasing the M-word with all the self-destructive fervor of Captain Ahab chasing Moby Dick — those losses will be cut for us. George W. Bush, who owed his first term as President to the gun owners in Tennessee who rejected their state’s native son, Al Gore, over their right to keep and bear arms, owed his second term to the Republican leadership’s ability to mobilize African-American clergy in Ohio to bolt from the Democrats to the Republicans over the same-sex marriage issue. The Queer leadership’s continued advocacy of same-sex marriage threatens not only its own civil rights but the overall progressive movement in U.S. politics — and that’s yet another reason we need to abandon this unwinnable issue.

Cutting our losses and accepting defeat on the same-sex marriage issue does not mean consigning ourselves to an eternity of “separate but equal” status. As I have argued above, there are plenty of reasons NOT to seek a structure for our families that copies heterosexual marriage, but instead to build our own EQUAL BUT UNIQUE institutions to safeguard our rights as individuals, as couples, as extended adoptive families, as romantic, emotional and sexual beings in ourselves and in relation to each other. The American people have told us again and again that they will not accept the term “marriage” as a description of our relationships, but enough of them WILL accept legal protections for our rights if we call them by another name. It’s up to us to abandon a fight we cannot win and be creative and committed to winning the fights we can.

APPENDIX: A Draft of a Compromise Federal Marriage Amendment

Section 1: Marriage shall be defined in the United States and in the several States exclusively as the union of one man and one woman.

Section 2: Nothing in this section shall deny to the Congress, the legislature of a State or the people of a State the power to create reciprocal rights, benefits and responsibilities for voluntary associations of adult persons ineligible for marriage as herein defined.