Marc Spindelman, Homosexuality's Horizon

• Publication year: 2005

HOMOSEXUALITY'S HORIZON†

Marc Spindelman^*

For C.K.

It is only for the sake of those without hope that hope is given to us.

INTRODUCTION

-Walter Benjamin

For some time, the right to marry has defined homosexuality's horizon. Once, very recently, a political and legal impossibility, officially a reductio ad absurdum, marriage has become the lesbian and gay communities' main programmatic obsession. No longer is it extraordinary to think, with Andrew Sullivan, that the lesbian and gay civil rights project could be at an end when full marriage rights, now the embodiment of the lesbian and gay communities' common hopes and aspirations for public recognition of our shared humanity, have, finally, been achieved.¹Look into the political distance: There's nothing beyond marriage for lesbians and gay men as far as the eye can see.²

No single text more perfectly coalesces the lesbian and gay communities' shared enthusiasm for this vision,³along with the energized determination to realize it, than the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health,⁴or more exactly, the leading opinion in it Chief Justice Margaret Marshall wrote, affirming lesbians' and gay men's constitutional right to marry. Conspicuously absent from this historic decision are the caveats, exceptions, and stuttering future limitations that have regularly been laced into even the most pro-lesbian and pro-gay rights opinions to forestall the predictable criticism that same-sex marriage must surely follow as a matter of logic or course.⁵(Oh, no.) Goodridge, which openly avows the rule other courts have assiduously shunned-that the

State cannot make lesbians and gay men second-class citizens by denying them full access to marriage on its ordinary terms⁶-proves it's not so scary after all to recognize that we are truly heterosexuals' equals. On its own, Goodridge thus moves us closer than we were before to the endgame of the current lesbian and gay rights litigation strategy: the right to marry, as Goodridge understands it, recognized, hence protected, as a black-letter rule of federal constitutional law.⁷

As if this weren't enough to guarantee Goodridge a venerable place in the hearts and minds of lesbians and gay men, not to mention our history books, there were the immediate attacks on Goodridge, regarded by some as a kind of gay-rights bashing, directed ultimately at lesbians and gay men themselves, that, following Arthur Miller's curious lead,⁸sought to cut back on Goodridge by proffering a "civil union" compromise: not marriage, but almost; everything but the name. Together, Marshall's court, joined by those who supported its decision, standing firm and to a chorus-literally (I heard it)-of "We Shall Not Be Moved," rejected anything short of the full and equal marriage rights Goodridge so clearly seemed to promise. And, Marshall explained, did. The proposed compromise, writes Marshall in an Advisory Opinion to the

Massachusetts Senate⁹(referred to, following Brown v. Board of Education's lead,¹⁰as Goodridge II, while giving new meaning to its mandate of "all deliberate speed"¹¹), "does nothing to 'preserve' the civil marriage law, only its constitutional infirmity."¹²For the court, she continues:

This is not a matter of social policy but of constitutional interpretation. As the court concluded in Goodridge, the traditional, historic nature and meaning of civil marriage in Massachusetts is as a wholly secular and dynamic legal institution, the governmental aim of which is to encourage stable adult relationships for the good of the individual and of the community. . . . The very nature and purpose of civil marriage, the court concluded, renders unconstitutional any attempt to ban all same-sex couples, as same-sex couples, from entering into civil marriage.

. . . Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate [them] to a different status. The holding in Goodridge, by which we are bound, is that group classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal.¹³

A small irony: Hardly a lesbian or gay reader of Goodridge II, like of

Goodridge itself, could possibly not be moved.

While the reception Goodridge has received among lesbian and gay publics is thus easy to appreciate, much more difficult to understand-and totally unnoticed until now-is what Goodridge looks like to people concerned with sexual abuse, sexual violence, and the sex inequality they reflect and foster. From the standpoint of these concerns, it looks as though Marshall's opinion in Goodridge-far from being all bright cloud and silver lining-may pose new dangers for victims of same-sex sexual abuse both in marriage and beyond it that they didn't face before.

Briefly stated, the concerns about Goodridge arise from its resounding and resoundingly simplistic affirmation of marriage's presumptive goodness, which operates in the case as a predicate for extending lesbians and gay men the same marriage rights heterosexuals already receive. In the social and legal world, this same picture of marriage-or one very much like it-has consistently served as a touchstone for covering the sexual injuries that male sexual privilege, one facet of the ideology of male dominance, produces, chiefly at women's expense. (If marriage is like this, then that couldn't have happened; therefore, she's lying.) Lending legitimacy to the erasure of cross- sex sexual abuse by approving the vision of marriage that can and has grounded it, Goodridge's extension of marriage rights to lesbians and gay men also raises the possibility that it has effectively enlarged the sex-relational terrain on which male sexual privilege-a social, not a biological force-is free to roam. It places married lesbians and gay men who are sexually violated in the same position that married women who are, traditionally have been in: struggling against the very ideals of marriage itself to gain the credibility required to get their injuries to be socially, hence legally, visible. Recognizing the details of this sketch, along with its extensions, including how it may impact unmarried lesbian and gay victims of sexual abuse and how its dynamics can operate to regulate sexual injury on the level of social identity, remain to be filled in, I begin at the beginning, with an analysis of Justice Marshall's opinion in Goodridge, to trace the textual dimensions of the perils it courts.

I. GOODRIDGE'S "LIKE-STRAIGHT" LOGIC

Following a pattern visible and (at last) successful in other recent lesbian and gay rights litigation efforts, lawyers for the lesbian and gay plaintiffs in Goodridge argued for same-sex marriage rights on both liberty and equality grounds.¹⁴Broadly uniting these formally distinct doctrinal claims was a remarkably uncomplicated proposition: Lesbians and gay men are just like heterosexuals. Elaborating, lesbian and gay rights advocates maintained that lesbians and gay men deserve the same rights and privileges heterosexuals receive, including the right to marry, and for just the same reasons. As Mary Bonauto, speaking for the lesbian and gay plaintiffs in the case, put it as she began her oral arguments before the Supreme Judicial Court:

The Plaintiffs stand before this court seeking nothing more and nothing less than the same respect under our laws and Constitution as all other people [read: heterosexuals] enjoy. The same "liberty right" to marry the person of their choice and the same "equal right" to marry on the same terms applied to other people.¹⁵

The normative power of this idea, of course, derives from the presumptive goodness of heterosexuality-a sexual status that is socially sacrosanct and legally, including constitutionally, protected, as the right-to-marry and constitutional marriage rights decisions, as well as the vast network of laws normalizing marriage, on both the federal and state level, amply show.

As a litigation tactic at least, the strategy paid off. "Like-straight" reasoning drives Marshall's Goodridge opinion start to end. Analytically, the curtain goes up with an attempt by the lesbian and gay rights advocates to put their like-straight argument to work on the statutory interpretation level, at center stage.¹⁶The marriage statute at issue in Goodridge, they pointed out, didn't expressly bar same-sex marriage. That prohibition was law-in-inaction: the refusal by state officials to deliver marriage licenses to the plaintiffs in the case, because the law didn't affirmatively recognize same-sex marriages. Seeing and suggesting a way for the court to acknowledge the merits of their like-straight claim while postponing a declaration on its constitutional validity until it was necessary, lesbian and gay rights advocates proposed that the court could simply read the Commonwealth's marriage law to permit otherwise

"qualified" same-sex couples to marry.¹⁷Nobody involved in the case questioned whether they were, except in one sense: They weren't choosing to marry a partner of the opposite sex.¹⁸

Goodridge wastes no time brushing the idea aside. The legislature, everyone knows, or should, the court explains, didn't intend to permit same- sex marriage when enacting the Commonwealth's marriage law. Invoking the "ordinary" or "quotidian" meaning of marriage,¹⁹Goodridge tells us that it's presently defined for purposes of state law as "[t]he legal union of one man and woman as husband and wife."²⁰This, Goodridge adds, shoring up the point, also happens to be the common law definition of marriage, jus gentium, the common law of nations, steady (in its view) across space and time.²¹To venture otherwise, according to Goodridge, ignores the Commonwealth's incest prohibition, which (curiously enough, at least at this moment in the opinion²²)...