Hate and Marriage
Same-sex marriage setbacks may not be all bad news for gay rights.
It's been a bad summer for same-sex marriage. Last week the Georgia Supreme Court upheld a state ballot initiative prohibiting same-sex marriage. The same day New York's highest court rejected a constitutional challenge brought by same sex-couples to the state's law limiting marriage to a man and a woman. And just when gay-marriage advocates thought things couldn't get any worse, the Massachusetts Supreme Court held Monday that voters could amend the state constitution to ban gay marriage in the only state that currently allows it.
Gay-rights activists are dismayed. For instance, Matt Foreman, director of the National Gay and Lesbian Task Force, said, in the wake of Hernandez: "I never would have dreamed that New York's highest court would be so callous and insulting to gay people … to have a legal decision that treats us as if we are alien beings."
But what if these gay-marriage bans were not animated by anti-gay bigotry? What if they represent a deeper-seated anxiety about gender and gender roles? What if popular aversion to gay marriage has less to do with hating same-sex couples than with a deep psychological attachment to a powerful symbol of sex difference: the tulle-covered bride and the top-hat-and-tails groom?
No one clearly admits this, perhaps because most people aren't sufficiently self-aware to name their deep anxieties—if they were, psychotherapists would be out of work. But you can hear the longing for secure gender identity in some of the comments of same-sex-marriage opponents. After San Francisco's same-sex marriage experiment, one observer in a red county nearby complained: "God made marriage for Adam and Eve; not Adam and Steve." It's telling that this objection to same-sex marriage doesn't rely on moral condemnation of same-sex couples but instead on the most primordial account of natural sex difference.
Of course, some opponents of same-sex marriage are just anti-gay. But to dismiss all opposition to gay marriage as pure bigotry is to miss an important point. The key to evaluating the real stakes here is to think of gay rights in terms of two major categories: gay marriage and everything else. Because for gay rights other than marriage, the news isn't nearly so dire. Many states forbid discrimination on the basis of sexual orientation, and a handful have codified domestic partnership status for same-sex couples. In 1992 only one Fortune 500 company offered employee benefits to same-sex domestic partners; today hundreds do. And polls show consistently growing support nationwide for gay rights other than marriage. Gallup found that 90 percent of Americans support equal employment opportunities regardless of sexual orientation. And 79 percent support the idea of homosexuals serving in the armed forces, a profound change in public opinion since the 1990s, when President Clinton thought it politically prudent to abandon his push for nondiscrimination in favor of "Don't Ask, Don't Tell."
But somehow same-sex marriage is a different story. The hope was that New York would follow Massachusetts and find that limiting marriage to mixed-sex couples violates the state constitution. Such a victory might have been important in helping build momentum for upcoming same-sex marriage fights in other states such as New Jersey and Washington, and in California, where judges hear extended arguments on same-sex marriage this week. Had New York joined Massachusetts, advocates could plausibly have claimed that we were witnessing a historical shift in the zeitgeist, and the same-sex marriage snowball might have really picked up speed.
But with New York declining to find a constitutional right to marry and Massachusetts opening to the door to a popular repudiation of same-sex marriage, any state that finds a right to same-sex marriage risks being a permanent outlier—maybe even a wedding party of one—if Massachusetts voters elect to amend their constitution in 2008. And for some reason, popular opinion on same-sex marriage has barely budged, even while support for other gay rights has increased. The numbers here are murky but still highly suggestive: A 1996 Gallup poll showed that 27 percent of Americans supported same-sex marriage and 68 percent opposed it. In 2005 a similar poll showed that 28 percent of Americans supported same-sex marriage and 68 percent opposed it. And so far, every gay-marriage victory—in Massachusetts and for a few shining weeks, in that Camelot by the Bay, San Francisco—seems to spawn same-sex marriage bans in a few other states. As of today 18 states have written same-sex marriage bans into their constitutions, making change by the legislature or the judiciary at the state level impossible. Several other states have such bans on the ballot for November.
How to reconcile the growing support for equal rights for gay Americans with the seemingly hardening opposition to gay marriage? It certainly suggests that homophobia is only part of the explanation for the widespread resistance to same-sex marriage. A lot of the resistance is less about sexual orientation than about sex difference. In other words, it's not about the difference between gay and straight; it's about the difference between male and female. By this logic, conventional marriage doesn't exclude gay couples from a special status reserved for straights; it excludes women from a special status reserved for men—that of husband—and excludes men from a status reserved for women—that of wife.
Does this sound purely semantic? It's not. When San Francisco undertook its short-lived experiment with same-sex marriage, it confronted marriage certificate forms with blanks for the names of the "bride" and "groom." The city hastily rewrote them to read "first applicant" and "second applicant." And this is telling. Many people get married because they want the established sex roles the institution provides: a blushing, beautiful, white veil and miles-of-lace bride set off against her dashing, handsome, chivalrous groom. Same-sex marriage seems to undermine these very sex-specific statuses, leaving everyone a sex-neutral "applicant." Sure, we could say same-sex marriages involve two brides or two grooms, but something really is lost in this translation: At that point the terms do not describe distinctively gendered roles but are merely gendered descriptions of the same role. We could just as well say "male applicant" and "female applicant." This might explain why so many straight people think same-sex marriage will change the nature of marriage for them.
If I'm right, there are two reasons someone might oppose same sex-marriage: anti-gay animus or a desire to protect traditional sex roles. It's no secret that traditional sex roles are in crisis. They've been battered by feminism's attacks on male privilege and feminine mystique. Macho women have mocked female virtues (consider the gun-toting Thelma and Louise, the oversexed Samantha Jones of Sex and the City, or the wooden-stake- and holy-water-wielding Buffy). And house husbands, Mr. Moms, and "metrosexuals" have similary rejected or lampooned traditional masculinity. Today both men and women reject the constricting and unequal sex roles of past generations, but most still desperately want meaningful sex identities. So they cast about, all too often buying into crude stereotypes, such as those offered in books such as The Rules, which counsels the single girl to deploy the catty feminine wiles and emotional manipulation learned in junior high school; or The Game, which counsels the single boy to use psychological manipulation and deception to wrangle sexual favors from reluctant women. Marriage fills that gender gap: It is one of the few social institutions left that rigorously and unapologetically divides the sexes into distinctive, almost ancient, gender roles.
Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.
Photograph of proponents of gay marriage, protesting, by Darren McCollester/Getty Images.