Tuesday, March 26, 2013

Today's the Day

The Supreme Court hears arguments over California's Proposition 8 today, and about the 1996 Defense of Marriage Act (DOMA) tomorrow.

We won't hear a decision about either until sometime this summer.  No matter how the Court rules, this will be a historic decision concerning marriage equality and about the status of sexual minorities in the United States.

As to how the Court will rule, my crystal ball is no more clear than anyone else's.  The views of Justices Scalia, Thomas, and Alito are a foregone conclusion, but the remaining 6, including Chief Justice Roberts, are less clear.  I will hazard to predict that they will not make a sweeping decision one way or another, but stick to technicalities or maybe punt this back to the states.

I've stated my views on marriage many times before on this blog ( here and here), that marriage is historically a very mutable institution, and that the whole reason we have this movement for marriage equality is because the rank and file LGBTs wanted it, not because of any initiative on the part of movement political leadership and despite the indifference or contempt for the institution of marriage on the part of the intellectual leadership of the gay rights movement.
I heard someone on the radio yesterday say that one major reason we've come to this point is because of changes in heterosexual marriage, and I think he has a point.  The old Victorian patriarchal autocracy is done, not only because people don't want it anymore, but because few people can afford it anymore.  The old model of the Pater Familias extending the protection of his benevolent despotism over other family members kept dependent doesn't work anymore.  Few people earn the wages and income support such a model anymore.  Few spouses would put up with it now, nor does that model have the legal sanctions it once did (wives and children are no longer legally considered "property" anymore).  A new more egalitarian model is now emerging in which spouses are equal partners in the marriage and make decisions together.  Gender roles are changing with now some husbands and sometimes both spouses changing names upon marriage.  More commonly, duties such as cooking, household maintenance, employment, and child-rearing are now shared between spouses.  It is now more common than not for couples to co-habit before marriage, even older couples.  In light of this new emerging egalitarian model of family life, the genders of the spouses hardly matter at all.  This may be one more reason why attitudes toward marriage equality, as well as legal and social equality for sexual minorities, are changing so rapidly and so dramatically.

We should remind ourselves that no matter how the Court rules on marriage that there will still be no protection against discrimination in employment and housing in most states, that basic civil rights laws for LGBTs remain a vulnerable hodge-podge of state and local laws.  It will still be necessary to pass the Employment Non-Discrimination Act (ENDA) which would be the first federal guarantee of civil rights for LGBTs.


JCF said...

"As to how the Court will rule, my crystal ball is no more clear than anyone else's."

And that's even more true, AFTER today's arguments! O_o

[I don't think PropH8 will be upheld, however. Probably not decided, due to standing. Perhaps overturned, due to the specific sitch of Prop8 (marriage legal, then outlawed). But not overturned on broad principal of civil right to marriage equality.]

Counterlight said...

I think you may be right, JCF.

Anonymous said...

I think there's a more general and basic change in marriage than what you outline.

C. 1700, marriage, at leas among the upper and middle classes, was as much, if not more, of an interfamily matter aimed at producing heirs to keep the property inside the clan; the feelings of the two people involved were very much a secondary matter.

Then things began to change, and love and affection became, first as important, and then more important. The late 18th century/early 19th century was a key era in this change. It took a long time for all the implications and consequences of this change to take place (the change in patriarchal authority is, I think, merely one of those changes); gay marriage is simply the most recent implication to become apparent. For all I know, it may not be the last one. But that, IMO, is why "biblical marriage" is so different from modern marriage.

Counterlight said...

You may also be right Kishnevi. As I recall, the norm for Biblical marriage was polygamy.