Marriage Equality and Reproductive Justice: Untangling the Knots

On August 4, 2010 Proposition 8 was declared unconstitutional in California because it violates citizen's Due Process and Equal Protection rights. A very good friend of mine with a JD also pointed out that they are discovering facts in this case, not arguing legal theory, which makes the decision much more likely to stick.


The decision to overturn Proposition 8 is a victory for same sex couples and a move towards equality for lgbt people. This ruling also directly relates to the reproductive justice movement.  One of my famous quotes is: "all oppresions are linked."  Oppression is like a knotted ball of yarn with many loose ends. It doesn't matter where you start to untangle it, the important thing is that you begin.


The ruling on proposition 8 says a number of things that are interesting to both the feminist and the gay/trans rights movements.


1. That marriage is about MORE than sex and procreation.
2. That lesbian and gay couples HAVE been discriminated against by their right to marriage being denied.
3. That lesbian and gay parents are equally as capable as heterosexual parents, coupled or otherwise, to raise children.
3. Marriage is not about gender, but about a relationship between equals.  Gender no longer defines roles in a marriage.


Proponents of Proposition 8 believe that the state has the duty to regulate marriage, sex, and procreation. I quote directly below from the court document.  

"Proponents’ procreation argument, distilled to its
 essence, is as follows: the state has an interest in encouraging
 sexual activity between people of the opposite sex to occur in 
stable marriages because such sexual activity may lead to pregnancy
 and children, and the state has an interest in encouraging parents
 to raise children in stable households. Tr 3050:17-3051:10. The
 state therefore, the argument goes, has an interest in encouraging
 all opposite-sex sexual activity, whether responsible or
 irresponsible, procreative or otherwise, to occur within a stable 
marriage, as this encourages the development of a social norm that 
opposite-sex sexual activity should occur within marriage. Tr
3053:10-2

The court is acknowledging that gender is not as useful as it once was, pretty radical stuff indeed! As gender defines less of our legal and societal roles, its importance will fade and equality will rise. I believe that gender is a social construct and laws have been developed around this construct-- perhaps its usefulness has finally faded. At least in California legal precedent on marriage it has... for the time being.


Those defending proposition 8 state openly that it is about controlling the family and reproduction.  The court however, recognizes that marriage is about much more than providing couples the right to procreate. In fact, the court believes that this is a limited view of marriage that does not fully articulate the bond between couples who choose to commit to spending the rest of their lives together. Ironically the those who are defending marriage are at the same time, lessening its value. 
The court has ruled:

Never has the state inquired into procreative capacity or 
intent before issuing a marriage license; indeed, a marriage 
license is more than a license to have procreative sexual
 intercourse. FF 21. “[I]t would demean a married couple were it
 to be said marriage is simply about the right to have sexual

intercourse.” Lawrence, 539 US at 567. 

The court has also stated that marriage, in effect, is a post-gendered institution.  Gender at one time was important in a marriage because work was divided based on gender.  Today, marriage is about a partnership between equals, however the couple decides to divide the daily tasks of living, and carry out the marital contract. 

The evidence at trial shows that marriage in the United 
States traditionally has not been open to same-sex couples. The
 evidence suggests many reasons for this tradition of exclusion,
including gender roles mandated through coverture, FF 26-27, social 
disapproval of same-sex relationships, FF 74, and the reality that the vast majority of people are heterosexual and have had no reason
to challenge the restriction, FF 43. 
...

Today, gender is not
 relevant to the state in determining spouses’ obligations to each
 other and to their dependents. Relative gender composition aside,
 same-sex couples are situated identically to opposite-sex couples 
in terms of their ability to perform the rights and obligations of
 marriage under California law. FF 48. Gender no longer forms an 
essential part of marriage; marriage under law is a union of
 equals.

This ruling is important, but not the final say in the battle for marriage equality.  It leaves excellent legal precedent for the seperation of sex and gender, and recognizes, for the first time, that marriage is a union of equals.  This ruling also states that marraige is about more than reproduction, a victory for reproductive justice advocates. However interesting, legal theory does not give equality to the countless couples waiting to have their love and lives fully recognized.