Legally Straight

Sexuality, Childhood, and the Cultural Value of Marriage

Joe Rollins

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9781479803842
• Topic: Derecho
• Subtopic: Derecho de familia

Argues that cultural conceptions of children – and childhood – played a key role in legalizing gay marriage Legally Straight offers a critical reading of the legal debates over lesbian and gay marriage in the United States. The book draws on key judicial opinions to trace how our understanding of heterosexuality and marriage has changed. Upon closer inspection, it seemed that the cultural value of marriage was becoming tarnished and the trouble appeared to center on one very specific issue: reproduction. As opponents of lesbian and gay marriage emphasized the link between marriage and accidental pregnancy, the evidence mounted, the arguments proliferated, and resistance began to turn against itself. Heterosexuality, it seemed for a moment, was little more than a set of palliative prescriptions for the worst of human behavior, and children became the victims. It thus became the province of the courts to reinforce the cultural value of marriage by resisting what came to be known as the “procreation argument,” the assertion that marriage exists primarily to regulate the unruly aspects of heterosexual reproduction. Cultural conceptions of children and childhood were being put at risk as gays and lesbians were denied marriage, so that writing lesbian and gay families into the marriage law became the better option.

1

The End of Heterosexuality?

On June 26, 2015, the U.S. Supreme Court ruled that marriage rights must be granted to lesbian and gay couples throughout the country. The Court’s decision in Obergefell v. Hodges was heralded as a major victory after more than forty years of activism and litigation culminated in the attainment of one of the LGBT movement’s primary objectives.1 Arriving during Pride Month and on the eve of many of America’s Pride parades and celebrations, the decision inspired festivity and congratulations on a monumental scale. The New York Times called the opinion “profound and inspiring,” comparing it to other major civil rights victories such as Brown v. Board of Education (1954) and Loving v. Virginia (1967). Borrowing from Justice Kennedy’s language in the opinion, the Times added that the Court “emphasized the dignity and equality not only of same-sex couples, but of their families and children. ‘Without the recognition, stability, and predictability marriage offers,’ he wrote, the children of these couples ‘suffer the stigma of knowing their families are somehow lesser.’” The four dissenting justices on the Court characterized the decision rather differently. Justice Roberts’s dissent compared the decision to Dred Scott v. Sanford, the 1857 decision holding that black people were not American citizens and Lochner v. New York (1905), a decision that has long been viewed as an example of judges inappropriately writing their personal preferences into public policy. Justice Scalia called the Obergefell decision a “judicial Putsch.” The Times also noted that “[a]s news of the ruling came out on Friday morning, opponents of same-sex marriage struggled to fathom how the country they thought they understood could so rapidly pass them by.”2

Many people—not just those opposed to lesbian and gay marriages—found themselves wondering how such change had happened so quickly. By comparison, the racist doctrine of “separate but equal” survived for almost sixty years before the Supreme Court overturned it. The Court’s constitutional approval of sodomy laws lasted only seventeen years, and a mere twelve years after shedding their outlaw status, gays and lesbians were granted the right to marry the partner of their choosing. That the gender complementarity of marriage would be altered at all left oppositionists perplexed and angry, but the speed with which change occurred, as the preceding quote exemplifies, was noted across the political spectrum. Why did such a change happen so fast? There are, of course, many different ways to answer this question. We might, for example, catalog the many successes of the gay and lesbian movement not just in the law but also in society, politics, and culture. Or we might attribute it to the changing gender requirements of straight marriage as noted in the introduction. I will argue, however, that the most potent explanation for such rapid change can be found by turning attention to one of the most prominent arguments advanced by opponents of lesbian and gay marriage: the procreation argument.

The procreation argument was not a coherent set of ideas grounded in evidence and presented logically in court. It was, instead, a pastiche of half-truths and unsupportable beliefs about how heterosexuality, gender, reproduction, and marriage should be, normative assertions that varied among litigants, judges, and factual circumstances. While everyone would agree that only heterosexual intercourse could result in accidental pregnancy (i.e., the procreation argument in a nutshell), that fact made for an unstable foundation on which to build a structure of legal resistance. Opponents of lesbian and gay marriage scrambled to cobble together an ideological golem comprising bits and pieces and shifting degrees of emphasis in an argument endowed with particular powers but one that ultimately fell apart rather spectacularly. Legally accepting the argument would have had at least two deeply problematic effects. First, it would have compromised our nostalgic hope that formal law is coherent, predictable, logical, and just. Second, it would have badly tarnished the cultural value of marriage, sullying our romantic hopes and nostalgia. The answer, instead, was to stop resisting and to let lesbian and gay couples marry. Gays and lesbians may now enter the sacred, ancient institution with all the respect and dignity and lofty aspirations that that suggests. But that is not the end of the story. Lesbians and gays are now expected to ensconce themselves within the confining structures of a monogamous, reproductive, suburban, capitalist lifestyle. Much has been gained, much has been lost; some things have changed, some have remained the same. But in the end, what has happened is this: lesbians and gays have become legally straight.

In the 1970s, when the first brave gay and lesbian couples attempted to get married, homosexuality was viewed as antithetical to procreation and child rearing. Lesbians and gay men were officially excluded from many social institutions—notably families and schools—because they were seen as a threat to vulnerable, impressionable children; they were considered pedophiles at worst, active recruiters into the homosexual lifestyle at best. By the 1990s, as the movement toward marriage rights gathered steam and increasing numbers of lesbians and gays were forming families and raising children, opponents turned to the procreation argument in order to maintain the heterosexuality of marriage. As advanced by opponents of lesbian and gay marriage, the procreation argument goes something like this: procreation is the central, defining feature of marriage; only heterosexual couples can procreate; lesbian and gay couples cannot reproduce naturally or accidentally and therefore should not be allowed to marry. The argument focused on the one and only demonstrable difference between lesbian/gay and straight couples: their ability to procreate without assisted reproductive technologies. Litigants utilizing the argument asserted that marriage exists primarily to ameliorate the excesses of wanton heterosexuality, that is, unplanned pregnancies, abortions, and the birth of unwanted children. Although antiabortion activists care little about whether pregnant women marry or not—so long as they carry their pregnancies to term—marriage is nonetheless imagined as a necessary mechanism with which the state may establish paternity, secure economic stability, and provide a supposedly ideal setting for child rearing, one that frees the state from most obligations to care for its youngest citizens. Marriage is also imagined to be a corrective legal measure that legitimates unplanned or unwanted pregnancies, turning iron into gold. Many of these ideological positions are specious, particularly considering that the majority of women who terminate pregnancies already have children (approximately 61 percent), and although 85 percent of women who terminate pregnancies are unmarried, nearly one-third of those are in stable, cohabiting relationships.3 Moreover, such data suggest that the primary reason women have abortions is to protect and preserve the families they already have.4

Gay and lesbian couples sought access to marriage for many of the same reasons that straight people do: in order to legally protect their relationships and families. Establishing legal relationships to our children and raising them successfully are goals that gays and straights have in common, but gay and lesbian couples are far less likely to experience unplanned pregnancies. Thus, it is the first term—“wanton heterosexuality”—that moved to the foreground of the marriage debate and began developing in legal discourse. Continued emphasis and ramification of the argument threatened to disrupt the social scripts through which we know and understand heterosexuality, procreation, gender, childhood and, most important, the family. Taken to its logical conclusion, the procreation argument would reduce marriage to nothing more than a palliative for the excesses of heterosexual couplings in support of the carelessly begotten children who resulted from them. The procreation argument thus foreshadowed the end of romance as we know it, threatened to interrupt the developmental narratives through which people make sense of their lives, and contained the potential to shatter our conceptions of the family especially insofar as it is a site for proper gender training. Courts were left with two options: allow gays and lesbians to marry or risk tarnishing the archetypal family ideal. Despite what we think we know about heterosexuality, it appears that the concept is rather opaque and difficult to analyze. Nevertheless, because the marriage debate has unsettled the relationship of gender to marriage, heterosexuality deserves to be reconsidered.

Heterosexuality Reconsidered

The belief that heterosexuality is natural, innate, healthy, and normal while homosexuality is an unnatural, filthy habit forced on children by others is now outdated—for many people—and the illogical contradictions of such thinking are undeniable. What has remained opaque, however, are the inner workings of heterosexuality. Homosexuality may be a choice, but if it is, so is heterosexuality. Either option would be fine, really, if we set aside our preferences for social hierarchy, but that seems difficult for many. When we examine sexuality more closely, we can see that it contains so much more than a gendered script for successful heterosexual development that leads to marital procreation. Legal scholar Katherine Franke has observed that “to call something sexual is, in one moment, to say too much and not enough about the meaning of the practice so named.” Franke’s critique draws evidence from three sources: the ritualized semen practices of the Sambians, a community of people in Papua New Guinea where boys are required to fellate their elders from a very young age; the assault on Abner Louima, whom New York City police officers sodomized with the wooden handle of a toilet plunger; and the well-orchestrated rapes of Croatian and Muslim women during the war in Yugoslavia. Labeling the practices of the Sambians or the brutality of the NYPD as sexual, Franke argues, overlooks the other forms of social power that are at work in each case. In the case of the Sambians, the ritualized practices that Western anthropologists were quick to call sexual were, in fact, neither erotic nor reproductive (what Westerners might consider sexual) but were part of a set of cultural practices that reinforced sexism by constructing women as unclean, a threat to virility and masculinity, and inferior to men. Similarly, the assault on Abner Louima was less sexual than it was about the racism of the NYPD. Instead, Franke proposes, we would do well to consider the approach taken by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the ICTY). The ICTY, in its prosecution of rapists, “treated sex-related violence as a serious, and often grave, breach of international humanitarian law, while avoiding the mistake of essentializing sexual conduct as a special kind of injury that deserves to be ‘protected, surrounded, invested’ with a unique legal response.” As Franke insists, the issue is not how to define sex or how to punish sexual transgression but how to recognize sex as but one type of bodily act that may serve ends other than eros or reproduction.5

In the United States we tend to think of heterosexuality as defined by two constitutive elements: sexual attraction between bodies that are differently gendered and the reproductive potential of such unions. The elusiveness of heterosexuality as an object of critique is aptly illustrated by quotations from two scholarly works written fifteen years apart. As Adrienne Rich observed:

The assumption that “most women are innately heterosexual” stands as a theoretical and political stumbling block for many women. It remains a tenable assumption, partly because lesbian existence has been written out of history or catalogued under disease; partly because it has been treated as exceptional rather than intrinsic; partly because to acknowledge that for women heterosexuality may not be a “preference” at all but something that has had to be imposed, managed, organized, propagandized and maintained by force is an immense step to take if you consider yourself freely and “innately” heterosexual. Yet the failure to examine heterosexuality as an institution is like failing to admit that the economic system called capitalism or the caste system of racism is maintained by a variety of forces, including both physical violence and false consciousness.6

Fifteen years later Jonathan Ned Katz wrote:

The intimidating notion that heterosexuality refers to everything differently sexed and gendered and eroticized is, it turns out, one of the conceptual dodges that keeps heterosexuality from becoming the focus of sustained, critical analysis. You can’t analyze everything.7

What is striking about these passages is that they call for greater attention to the inner workings of heterosexuality, and still the concept remains so deeply embedded in our consciousness as necessary to survival of the human species that it continues to evade scrutiny. Katz continues, observing that “[h]eterosexuality, we usually assume, is as old as procreation, as ancient as the lust of the fallen Eve and Adam, as eternal as the sex and gender difference of that first lady and initial gentleman.”8

As Katz argues, heterosexuality—that is, the origins of the word itself—can be traced to the early sexologists for whom it meant something very different from what we understand today. In its first iteration, appearing in the work of Richard von Krafft-Ebing in 1893, hetero-sexuality (then a hyphenated term) referred to male-female sexual relations and included both eroticism and a reproductive instinct, a distinction that was briefly set aside when the concept was imported to America. In its first American usage, the word “heterosexual” seemed to refer to straight sexuality that was not intended for reproduction and, consequently, for a moment, it seemed freighted with pathological potential; people were having sex just for fun. Heterosexuality, in this usage, referred to too much straight sex without enough babies. But use of the term to signify pathology or deviance was short-lived, and before long the terms “heterosexual” and “homosexual” “helped to make sex difference and eros the basic distinguishing features of a new linguistic, conceptual, and social ordering of desire.” Katz goes on to argue that heterosexuality “is invented in discourse as that which is outside discourse. It’s manufactured in a particular discourse as that which is universal. It’s constructed in a historically specific discourse as that which is outside time. It was constructed quite recently as that which is very old: Heterosexuality is an invented tradition.”9

Several prominent scholars across the twentieth century helped invent the system of sexuality we now see dominating mainstream American thought. Among those, Sigmund Freud was one of the most prominent, and critiques of his work have ranged across a spectrum of possibility, with many emphasizing how his particular brand of heterosexuality has been linked to gender oppression.10 But as John Gagnon and William Simon pointed out, Freud, as well as Alfred Kinsey—another of the most prominent sexologists of the twentieth century—assumed that sexuality was a natural, instinctive drive and one that was anchored in the body, a perspective that overlooked the social roles and meanings attributed to sexual behavior. According to Gagnon and Simon:

It is this assembly of the reality of the body and the social and cultural sources of attributed meaning that is missing in the two greatest modern students of sexuality in the West. In Freud we find a world dominated by the search for motivation, a world in which the body never seems to be very problematic since it is both the source of naturalness (anatomy becomes destiny) and the passive recipient of meanings attributed to it. . . . In the work of Kinsey we see the opposite thrust. Here we have sexual women and men in the decorticated state; the bodies arrange themselves, orgasm occurs, one counts it seeking a continuum of rates where normalcy is a function of location on a distribution scale.11

These “natural” conceptions of sexuality as located in the body and devoid of social content guided much of the scholarship on sexuality in the twentieth century. Early attempts to explore this system and deconstruct heterosexuality began in the 1970s as radical and socialist feminists began to unpack the links between heterosexuality and gender inequality.12

At the time that heterosexuality became the dominant paradigm organizing our sexual lives, it served as the glue that reinforced a number of other social structures. It evolved as a script whereby men were economically tied to the women they impregnated, women were made dependent upon the support of those men, and communities relied on marriage to delineate the proper boundaries of the basic economic unit known as the family and to know who properly belonged within each unit. Because heterosexuality established an ostensibly “natural” set of boundaries around the legally, socially, politically, and economically necessary cluster of people we know as family, the fact of its invention went largely unnoticed outside of scholarly circles; it is assumed to have originated in a social ordering of the world that was ordained by nature, God, or some other immutable force. Because of the biological realities of childbearing, this conception of family came to be thought of as a natural structure that located women’s unpaid labor in the home, made women the primary caretakers of children and providers of their early education and socialization, and set up a situation wherein men would h...