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The Johnston Letter, Volume 4, Number 4
The Constitution and Same-Sex Marriage

By Jill Johnston
Copyright 2008 Jill Johnston

This piece was first published in July 2006, and is updated here.

Other than the two main discussions involving gay marriage -- "the kind of society we want," and any Constitutional debate over what the structure of government can permit -- there is a third possibility. A third would be critical of the Constitution itself, which remains short of passing the ERA or Equal Rights Amendment for Women. With half the population (or somewhat more) not recognized as equal under the Constitution, what kind of meaningful debate over and above that is possible where women are involved, as of course they are in gay marriage? The background to considering women in this context is over three decades old, thus largely forgotten. Of the 17,000 couples in California for instance, recently married under the State Supreme Court decision in May, and now disenfranchised by the victory of Proposition 8 on November 4, perhaps half of them are women, and no one at this point would think of asking what their status is in relation to their male counterparts. During the early 1970s, their fate was sealed as part of a larger gay movement dominated by men when it became increasingly apparent that the feminist movement was determined to stigmatize and exclude them from its ranks. Hold-outs, known as lesbian feminists, died as a political force.

Slavery was debated for a hundred years in Constitutional terms, and women for the next one hundred. African-American men achieved voting rights 55 years before women of any race. This enfranchisement of a group of men made sense under a Constitution drawn up by the same gender. Suffrage for women as enacted in 1920 was a type of oxymoron, however a reasonable reform, easing the condition of women under a system not their own. It was not a serious threat to the status quo. Who could they vote for anyway, if not for men? With the advances of women through the Second Wave, and present-day choices expanded -- a certain complement of women running for state and federal offices -- the highest positions have remained safely in the patrimonial majority.

With such new exceptions as Nancy Pelosi as Speaker of the House, and of Hillary Clinton making a powerful run for the presidency, we can ask naturally: What does the nation make of the extraordinary contradiction between the Speaker's "patriarchal" preeminence and her Constitutional inequality? And further, in the case of Clinton, should she have succeeded, how would her role as chief executive have been squared with her Constitutional nonentityness?

The coalition of women and men under the civil rights issue of gay marriage is another kind of oxymoron. A further allowance, such as that for women voting, would mean different things to women and men. Women would be participating in an institution historically disadvantageous to their sex, carrying a message of obliviousness to the precarious position of women at large. Gay men may want to forego the domestic services of women, and not mind acquiring the stigma of a serious minority, but their rights as men under the Constitution would remain intact.

George W. Bush has said, "Marriage, between a man and a woman, is the fundamental institution of our society." Barack Obama shares this view. Neither Bush, nor Obama in his higher intelligence, would say that the Constitution rests on this assumption. That would be edging too close to the deeper assumption of society girded by patrilineal descent and privilege. The whole subtext is that marriage, as traditionally defined, is the cornerstone of patriarchy.

The parallel that people have made between the legalization of mixed-race marriages in the 1960s and the controversy today over gay marriage is specious when you realize that the earlier issue stayed within the Constitutional framework of marriage as between a man and a woman. Where marriage is not so defined, it raises the thorny problem of the absence of the procreating male (reduced at best to sperm in a bottle), whose rights as such are embedded, however unarticulated, in the Constitution. Should 50 percent of the population be gay and clamoring for marital rights, one can imagine a Constitutional crisis. As it is, with 10 percent only, more or less, where is the threat? Either society will move over and create a reform, or it will exercise its majority prerogative negatively.

In the "what kind of society do we want" question, civil rights for same-sex couples of both genders are of course most desirable, especially for children, who suffer in ways similar to the children of unwed mothers in the past -- a blight still existing in many countries, but also in significantly numerous layers of American society. Without state legalization of their parents' commitments, children are liable to secrecy or concealment and are at much greater risk than "legal" children for emotional and financial instability. Civil Rights affording gay partners the same benefits of straight married couples can of course be enacted ex-maritally, and they have been. For gay women, the extra-marital benefit package should be ideal. When women marry men, knowingly or not they condone their Constitutional inequity.

Married gay women, allowed into the system, would lose their difference, i.e., the revolutionary potential they represent. If this is true, the government would do well to recognize it and co-opt them by letting them marry each other.

Only another feminist movement is likely to mount a Constitutional challenge resulting in the passage of the ERA or equal rights for women, which died in 1982, having been ratified in 35 states, leaving it three states short of the required 38. Every year, the motion is reintroduced to Congress.

If successful, marriage itself would no longer be the chief supporting institution of patriarchy, existing at the expense of one gender over the other. It would be simply a commitment between equal partners, and marriage between two women hardly worth commenting on.

©Jill Johnston. Previously published on www.jilljohnston.com. To read more about Jill Johnston, please click here. To read more of Jill Johnston on the Dance Insider, click here.

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