Law professors see sex discrimination as the best argument for gay marriage

Presenters Mary Ann Case and Andy Koppelson speak with English and Gender Studies professor Kasey Evans. Photo: Joseph Lyons.

At a talk on why women should care about gay marriage, University of Chicago law and gender studies professor Mary Ann Case said that she and conservative, often religious scholars, are on the same page when it comes to same-sex marriage.

“More and more I’m finding it with Scalia and Ratzinger, or Benedict XVI, that we see the world in the same way. We connect the dots and the picture looks the same.”

The only difference being that she likes the outcome.

Case and Northwestern law professor Andy Koppelman spoke Thursday in Evanston, breaking down the legal arguments for same-sex marriage and how anyone with a feminist perspective will benefit from its legalization through the court system.

“Ratzinger’s dreams are my nightmares and vice-a-versa,” Case said.

She said that legalization of same-sex marriage will be the latest evolution of American marriage law that moves it from a hierarchical institution, and more recently one of role differentiation between men and women, to a purely a legal commitment two people make to one another recognized by third parties and the government.

In other words, the marriage relationship initially was one in which the man had control of the woman’s right to do any number of things — not only in domestic lives, but outside of the home too. For example married women could not own property in their own name until 1848 in New York, and only in 1900 was this legal in all states.

The next legal stage of marriage was a world of separate spheres and separate duties.

“The law assumed a breadwinner, and that the breadwinner is male. The law assumed there was a homemaker and that she was a woman,” Case said.

These laws came under attack in the last 50 years, and now married couples are free to shape their lives however they would like, to differentiate roles, share tasks, have sex or not — in any manner they choose.

Case said that “marriage resisters” and other scholars who dislike the institution’s patriarchal history have put forth the idea of abolishing marriage altogether. Case argued, however, that the best way of making marriage into something that these people might want to enter would be to limit the last bit of differentiation between the roles of males and females within marriage law.

“And that is the fact that you need one of each to enter into a marriage,” Case said.

In other words, the law doesn’t spell out any difference between men and women within the marriage relationship, except that there is one man and one woman.

Case said there are lots of constitutional arguments against bans on same-sex marriage, including the history of discrimination against gay people and the more general right to marry. But given marriage’s history as a hierarchical subordination, followed by role differentiation between the sexes, only the argument of sex discrimination would eliminate this last vestige of differentiating the roles and abilities of men and women.

“I’m terrified that even if we get same-sex marriage, that may not happen,” Case said.

Koppelman further explained why constitutional arguments based on sex discrimination are more accurate than those claiming discrimination based on sexual orientation, which is not protected under the 14th Amendment or the Civil Rights Act of 1964.

Koppelman said that if we were to argue that sexual orientation were the basis of discrimination, then we would have to collect the information. If it’s legally relevant, it must be collected from the parties.

The problem, then, is that when you go to the registrar, they don’t ask what your sexual orientation is, Koppelman said. They just ask what your gender is.

Koppelson said the main objection is that this is a lawyer’s trick, but he disagrees

“I look at my own experience as an observer of American culture,” Koppelson said. “I remember in junior high school, that anything you did that wasn’t protypically masculine labeled you a ‘faggot.’ Then I had to undertake an investigation to find out what these people were talking about. This wasn’t about sexual orientation. It was about policing the behavior of straight people.”

Thursday’s event was one of many planned for this school year by Northwestern’s Department of Gender and Sexuality Studies, until this year called Gender Studies.

Amy Partridge, Northwestern’s director of undergraduate studies and associate director of Gender and Sexuality Studies, said the event was intended to revisit what has been a contentious debate between feminists from an earlier movement that espouse an anti-marriage position and LGBT activists fighting for the rights of LGBT people to get married.

“We are really trying to take into consideration the intersection of feminist and queer politics and gender and sexuality studies, both in their current and historical interactions,” Partridge said.

Clare Forstie, a Northwestern PhD student, attended for both personal and professional reasons.

“For me, as someone in a same-sex marriage, it’s important for me educate myself,” Forstie said. “But I’m also a graduate student. I research the sociology of sexuality.”

Forstie said she hadn’t considered some of the legal arguments before going to the talk, nor that marriage might be the best way to allocate benefits.

“I have friends that are on the left and very against same-sex marriage because they see it as a patriarchal institution, and I always struggle with that. I’m not really sure. I am on the fence,” Forstie said.

She said she sees the practical side, where marriage awards benefits in an efficient way but, for her, legal arguments won’t be the deciding factor.

“It’s understood as more than just a law, it has all these cultural meanings,” Forstie said. “By buying in, we’re encouraging them. But as far as access to benefits, I don’t see another way yet.”