The politics of same-sex marriage politics.

• Author: Franke, Katherine M.
• Position: Sexuality and the Law

In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and Connecticut have enacted Civil Union laws for same-sex couples, the Commonwealth of Massachusetts now allows both same and different sex couples to marry, and, in the last year, trial courts have found unconstitutional the exclusion of same-sex couples from the institution of marriage in New York and California. Spain has now joined some of its fellow EU members in the Rhine Delta by allowing same-sex couples to marry, and the Constitutional Court of South Africa found that the South African Constitution requires that same-sex couples be permitted to marry on terms equal to those made available to different sex couples. (1) At the same time, Governor Schwarzenegger vetoed the same-sex marriage law in California, courts in Arizona and Indiana rejected constitutional challenges to their marriage laws, an intermediate appellate court in New York reversed a trial court finding that same-sex couples should be permitted to marry, and referenda barring same-sex marriage swept the country in 2004 and 2005 and will, no doubt, continue to do so in 2006. Forty-two states have enacted "little DOMAs," (2) limiting the institution of marriage to one man and one woman. This issue, like so many others in American politics at the present moment, is highly polarized--rarely garnering moderate positions.

I would like to reflect on this dynamic political, moral, and legal moment--which, I fear, may have shifted again by the time you finish reading this Essay--by offering some thoughts about how and why this particular issue has emerged as the highest of priorities in the gay community, and what might be the costs of such a strategic choice. Just two years ago, in sweeping language, the U.S. Supreme Court found laws that criminalized same-sex sex unconstitutional in Lawrence v. Texas. This decision has been widely referred to in the lesbian and gay legal community as "our Brown," referring to the landmark 1954 desegregation decision Brown v. Board of Education. By this, of course, it is meant that Lawrence would usher in a civil rights revolution for gay men and lesbians in a fashion equivalent to the civil rights movement inaugurated by Brown.

In an Essay published in 2004, I offered a more modest appraisal of the promise of Lawrence than that advanced by the leaders of the major gay rights organizations in New York and Washington. (3) I also voiced concern about the direction that the gay community was taking in its infatuation with domesticity and respectability, as well as the dangers inherent in this particular paradigm shift in the way the state regulated same-sex sex. In this Essay I would like to elaborate on some of the ideas I gestured toward in that Essay, particularly in light of developments in the last year or so.

As a political and a legal matter, decriminalization lands one in both an interesting and, for some, uncomfortable social position. In important respects, gay people's relationship to the state at this moment shares some similarities with the position of freed men and women in the nineteenth century in the period between the ratification of the Thirteenth and Fourteenth Amendments. Black people were no longer enslaved or enslavable, yet they did not enjoy robust civil and political rights either. They were not citizens or full civil and political subjects, rather they were freed-people, not free people. It took the 1866 Civil Rights Act and ultimately the Fourteenth Amendment to the Constitution to transform Black people into African-Americans. The middle ground they lived in during the period between emancipation and citizenship I have come to call "freed-dom."

Gay men and lesbians find themselves in a similar civil and political middle ground now as well. Decriminalization merely disables a form of public regulation of private adult activity, it is nothing more than the undoing of delegitimization; indeed, it neither sanctions nor suggests any alternative form of legitimization. So too, it does not render, determine, or require a particular form of political legibility. It merely signals a public tolerance of same-sex sexual behavior, so long as it takes place in private, and between two consenting adults in a relationship. By steps from Bowers to Lawrence, lesbigay people have sought to reposition themselves in the American polity from a liminal location saturated by perversion, to membership in this political community as equals and as peers.

Of course there was an intermediary step between Bowers and Lawrence. In Romer v. Evans, the Supreme Court, over the predictably vehement objections of Justice Scalia, invalidated a Colorado referendum that prohibited state or local governments from extending civil rights protections to persons on the basis of sexual orientation. The Court based this holding on the normative assertion that it was illegitimate to enact laws that are based in nothing more than a dislike of a class of people. In a sense the Court used this as an opportunity to rearticulate an anti-caste principle.

Romer and Lawrence taken together shifted the treatment of us by them from the domain of criminalization, shunning, and shaming to tolerance. These cases stand for the proposition, among other things, that majoritarian revulsion of this minority cannot form the legitimate basis of our regulation by civil or criminal law.

Yet, as political scientist Wendy Brown argues in her forthcoming book on tolerance, (4) being tolerated is a liberal conceit that entails a set of dilemmas that may help us understand the complicated politics of same-sex marriage. Tolerance within liberalism works so long as that thing about you to be tolerated remains both private and individualized--that is to say, so long as it does not make a political claim. And, of course, that is exactly what the demand for recognition of same-sex marriage amounts to--a claim against the political, although articulated in the legal vernacular of rights. Justice Kennedy went to great lengths in his opinion in Lawrence to immunize the decision from the political--casting it again and again as a dispute about private conduct that entailed nothing with respect to political recognition of same-sex sex or same-sex coupling. This inoculation, I suspect, has failed miserably.

In the end, Justice Scalia was right--Lawrence emboldened, inspired, and indeed enabled the political claim that the state could no longer refuse to recognize same-sex marriages. We should note, however, that the shift from decriminalization to recognition of same-sex partnerships requires more, or indeed something else than, an argument based on tolerance. Those who advocate for same-sex marriage are not asking that the majority bracket the disgust they hold for us so long as our sex is privatized and individualized. Rather, this is a public argument of a collective nature--we want to be included in "We the People."

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