Taking the intersexional imperative seriously: Sexual orientation and marriage reform

Denver University Law Review

Volumn 75, Issue 4, 1998, Pages 1255-1264

  Schacter, Jane S ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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[No Author keywords available]

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EID: 11544365549     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (48)

1. See Susan Sterett, Husbands & Wives, Dangerousness & Dependence: Public Pensions in the 1860s-1920s, 75 DENV. U. L. REV. 1181 (1998).
2. See Martha M. Ertman, Reconstructing Marriage: An InterSEXional Approach, 75 DENV. U. L. REV. 1215 (1998) [hereinafter Ertman, Reconstructing Marriage]. For a more extended exploration of Ertman's proposal, see Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women's Work Through Premarital Security Agreements, 77 TEX. L. REV. 17 (1998).
3. See Martha M. Ertman, Reconstructing Marriage: An InterSEXional Approach, 75 DENV. U. L. REV. 1215 (1998) [hereinafter Ertman, Reconstructing Marriage]. For a more extended exploration of Ertman's proposal, see Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women's Work Through Premarital Security Agreements, 77 TEX. L. REV. 17 (1998).
4. See Martha M. Ertman, Reconstructing Marriage: An InterSEXional Approach, 75 DENV. U. L. REV. 1215 (1998) [hereinafter Ertman, Reconstructing Marriage]. For a more extended exploration of Ertman's proposal, see Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women's Work Through Premarital Security Agreements, 77 TEX. L. REV. 17 (1998).
5. See Ertman, Reconstucting Marriage, supra note 2, at 1216-17, 1219-26.
6. See id. at 1228-34.
7. See Sterett, supra note 1.
8. See id.
9. See Ertman, Reconstructing Marriage, supra note 2, at 1216-17, 1219-26.
10. See id. at 1225-26.
11. See Sterett, supra note 1, at 1187-93.
12. See id. at 1198-1204.
13. See Ertman, Reconstructing Marriage, supra note 2, at 1230-31.
14. For further discussion of this point, see Jane S. Schacter, Skepticism, Culture and the Gay Civil Rights Debate in a Post-Civil Rights Era, 110 HARV. L. REV. 684, 721 (1997).
15. Ertman, Reconstructing Marriage, supra note 2, at 1229.
16. Id. at 1229-31.
17. Ertman recognizes this potential limitation. See id. at 1249-50.
18. Id. at 1234.
19. For a historical analysis of the regulation of heterosexuality and a comprehensive argument in favor of applying a bargaining framework to the politics of heterosexuality, see LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX (1998).
20. Indeed, a robust pluralism of affiliative structures would also allow for non-affiliation, and would rethink fundamentally the linkage of important rights and benefits like health insurance coverage with long-term interpersonal commitment. See Paula L. Ettelbrick, Since When Is Marriage a Path to Liberation?, 6 OUT/LOOK: NAT'L LESBIAN & GAY Q. 9, 16-17 (1989).
21. This point is explored at greater length in Schacter, supra note 12, at 719-23.
22. See Sterett, supra note 1.
23. See generally Martha L. Fineman, Images of Mothers in Poverty Discourses, 1991 DUKE L.J. 274. Fineman argues that the welfare system, with its goal of eliminating single motherhood, favors, and pushes individuals into, a traditional nuclear family structure, with the father as financial provider and mother as homemaker. Id. at 277-93; see id. at 276 ("[T]he ideology of patriarchy is the most instrumental force in the creation and acceptance of discourses about Mothers in our society.").
24. Cf. Ertman, Reconstructing Marriage, supra note 2, at 1248 (recognizing the potential of PSA's to "exacerbate rather than alleviate the marginalization of poor people and many women of color").
25. WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE 84-85 (1996) (arguing that claims made by gay "marriage critics are too speculative to overcome the presumption of equality").
26. Paula L. Ettelbrick, Wedlock Alert: A Comment on Lesbian and Gay Family Recognition, 5 J.L. & POL'Y 107, 114 (1996) (arguing that gay and lesbian rights advocates should be cautious in arguing for same-sex marriage and should pursue "more inclusive social and legal policies that would bestow respect and benefits upon all who assume the responsibility and functions of family-whether they are married or not"); see also Ettelbrick, supra note 18.
27. Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 LAW & SEXUALITY 9, 12 (1991) (arguing that "legalization of lesbian and gay marriage and the adoption of domestic partnership provisions are incomplete unless the other option also exists, and that they need to be analyzed as part of the feminist inquiry into how both private and public law reinforce power imbalance in family life").
28. Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 CONN. L. REV. 561, 586-602 (1996) (arguing that many same-sex marriage advocates essentialize the gay/lesbian experience, ignoring vital racial and class differences among members of the gay and lesbian community).
29. Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage," 79 VA. L. REV. 1535, 1549-50 (1993) (arguing that advocacy of lesbian and gay marriage will "require a rhetorical strategy that emphasizes similarities between our relationships and heterosexual marriages, values long-term monogamous coupling above all other relationships, and denies the potential of lesbian and gay marriage to transform the gendered nature of marriage for all people").
30. Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, 6 OUT/LOOK: NAT'L LESBIAN & GAY Q. 9, 9 (1989) (arguing that, despite the historically oppressive structures of the marriage construct, gay rights advocates should seek legal recognition of same-sex marriages because the economic advantages and legal rights that marriage confers upon individuals will futher both equal rights and the transformation of the current institution of marriage).
31. ANDREW SULLIVAN, VIRTUALLY NORMAL 178-79 (1995) ("Marriage is not simply a private contract; it is a social and public cognition of a private commitment. As such, it is the highest public recognition of personal integrity. Denying it to homosexuals is the must public affront possible to their public equality.").
32. Fineman, supra note 21, at 291.
33. MARTHA ALBERSTON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 106-18 (1995). See generally Linda J. Lacey, As American As Parenthood and Apple Pie: Neutered Mothers, Breadwinning Fathers, and Welfare Rhetoric, 82 CORNELL L. REV. 79, 79 & n.1 (1996) (reviewing FINEMAN, supra, and DAVID BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM (1995)) ("Rhetoric about the dangers that single mothers pose to society has reached a fever pitch in the last decade. Critics blame single mothers for poverty, crime, drug addiction, and the breakdown of western culture as we know it.").
34. MARTHA ALBERSTON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 106-18 (1995). See generally Linda J. Lacey, As American As Parenthood and Apple Pie: Neutered Mothers, Breadwinning Fathers, and Welfare Rhetoric, 82 CORNELL L. REV. 79, 79 & n.1 (1996) (reviewing FINEMAN, supra, and DAVID BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM (1995)) ("Rhetoric about the dangers that single mothers pose to society has reached a fever pitch in the last decade. Critics blame single mothers for poverty, crime, drug addiction, and the breakdown of western culture as we know it.").
35. MARTHA ALBERSTON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 106-18 (1995). See generally Linda J. Lacey, As American As Parenthood and Apple Pie: Neutered Mothers, Breadwinning Fathers, and Welfare Rhetoric, 82 CORNELL L. REV. 79, 79 & n.1 (1996) (reviewing FINEMAN, supra, and DAVID BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM (1995)) ("Rhetoric about the dangers that single mothers pose to society has reached a fever pitch in the last decade. Critics blame single mothers for poverty, crime, drug addiction, and the breakdown of western culture as we know it.").
36. MARTHA ALBERSTON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 106-18 (1995). See generally Linda J. Lacey, As American As Parenthood and Apple Pie: Neutered Mothers, Breadwinning Fathers, and Welfare Rhetoric, 82 CORNELL L. REV. 79, 79 & n.1 (1996) (reviewing FINEMAN, supra, and DAVID BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM (1995)) ("Rhetoric about the dangers that single mothers pose to society has reached a fever pitch in the last decade. Critics blame single mothers for poverty, crime, drug addiction, and the breakdown of western culture as we know it.").
37. See N.J. STAT. ANN. §§ 44:10-3.4 to 3.7 (West 1993) (repealed 1997) (providing that children whose parents marry shall have their benefits continued); see also Julie Kosterlitz, The Marriage Penalty, 24 NAT'L J. 1454, 1455-56 (1992) (discussing a similar proposal in Wisconsin).
38. Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of the U.S.C.).
39. These congressional findings are among those made in connection with the Temporary Assistance for Needy Families program. The findings appear in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 101, 110 Stat. 2105, 2110 (codified at 42 U.S.C. § 601 note (Supp. II 1996) (Congressional Findings)), reprinted in JULIE A. NICE & LOUISE G. TRUBEK, POVERTY LAW: THEORY AND PRACTICE 619-20 (1997).
40. 42 U.S.C. § 601 (a)(4) (Supp. II 1996).
41. The Defense of Marriage Act denies federal recognition to same-sex marriages and legislatively authorizes states to deny recognition to same-sex marriages that may be performed in other states. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 (Supp. II 1996), and 28 U.S.C. § 1738C (Supp. II 1996)).
42. State statutory analogues to this federal law generally deny recognition to any same-sex marriage that may be performed in another state. For an overview of the Defense of Marriage Act and cognate state laws, see Andrew Koppelman, Same-Sex Marriage, Choice of Law, and Public Policy, 76 TEX. L. REV. 921 (1998).
43. Cf. Hutchinson, supra note 26, at 583-636 (arguing that pro-marriage strategies deployed by gay rights proponents work to erase and obscure the experiences and needs of gays and lesbians who are poor or of color).
44. By stressing this aspect of the problem, I do not mean to erase other ways in which advocacy for same-sex marriage may create undesirable effects, such as by creating hierarchies within the gay and lesbian community that disfavor those who may choose not to marry. See Ettelbrick, supra note 18, at 16 ("Ironically, gay marriage, instead of liberating gay sex and sexuality, would further outlaw all gay and lesbian sex which is not performed in a marital context.").
45. ESKRIDGE, supra note 23, at 8-13.
46. SULLIVAN, supra note 29, at 182.
47. Evan Wolfson, Same-Sex Marriages: PRO - Two Sides Debate Issue Before Congress and the Courts, DALLAS MORNING NEWS, June 23, 1996, at 1J.
48. See generally Hunter, supra note 25 (arguing that the legalization of gay and lesbian marriage will potentially destabilize the gender-based definition of marriage, and thus have effects beyond the gay and lesbian communities).