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reed magazine logoSummer 2008

Stuart and John make a simple but powerful point: marriage laws discriminate against gays and lesbians, and that injustice needs to end. In fact, their argument, presented in court by Lambda Legal, a nationwide lesbian, gay, bisexual, and transgender (LGBT) advocacy group, may end up having implications well beyond marriage—from housing to employment. Now, in California, to quote the recent decision, “an individual’s sexual orientation—like a person’s race or gender—does not constitute a legitimate basis upon which to deny or withhold legal rights.” The government can no more say that only people of opposite sexes may marry than that only people of the same race may marry.

All this has a familiar ring for the Gaffneys. “In 1948, the year I graduated from Reed, the California Supreme Court, in Perez v. Sharp, said that the legislature’s law against miscegenation was unconstitutional,” remembers Mason, now 84. “Four years later, in March 1952, Estelle [Lau] and I got married.” The marriage lasted fifteen years, and produced Stuart and his two siblings. Mason, who teaches economics at UC Riverside, has remarried and has three more children from his second marriage.

“The idea that I would marry a Chinese woman was totally alien to me, it never crossed my mind,” says Mason. And the couple never would have crossed the threshold if not for Perez. “Stuart kept saying ‘I wouldn’t even exist if it weren’t for that decision.’”

The Gaffney family’s experience in those early years explains why Stuart and John were so driven to become “poster children” (as Mason puts it) for the gay marriage cause, and why they would never settle for the “almost-married” legal status being enacted in many jurisdictions.

“Domestic partnership and civil union carry none of the meaning and transformative quality of marriage,” says Stuart. The California Supreme Court agreed, stating in its ruling that allowing same-sex couples to obtain a separate state-sanctioned legal status could cast “doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.”

For Stuart, this gets very personal. “I always think of my mom and dad,” he says. “What if they’d been given many or most of the rights and responsibilities of marriage, but they’d been told, ‘because you’re interracial we’ll give you an interracial union.’ What message would that have sent to my parents, to their kids, to their neighbors?”

While conservatives are focused on what they perceive as a mortal attack on marriage by liberals and gay rights advocates, another line of attack is forming far out on the left flank of the progressive movement. Some liberals and libertarians, gay and lesbian activists, and politically active feminists are questioning whether or not the state should be in the business of sanctioning our most intimate relationships at all. Feminist and queer political theorists, among them Reed assistant professor of political science Tamara Metz, argue that state-sponsored marriage—whether restricted to heterosexuals or expanded to include gays and lesbians—is irredeemably flawed. The role of establishing and affirming marital status, they say, should be left to the private realm; state policy should focus exclusively on supporting families in all their guises, and doling out the legal rights and benefits (from Social Security to health insurance) they need to survive and thrive.

“Marriage is the way the U.S. privatizes dependency, giving the family primary responsibility for providing for the needs of its members,” says Martha Fineman, Robert W. Woodruff Professor of Law at Emory University. She sees marriage as inextricably wound up with economic injustice and the disempowerment of women and those they care for. In her essay “Why Marriage,” Fineman notes that marriage equality for gays does nothing to alter this basic structure, and won’t do anything for those who need the benefits and protections of family law the most—children, the elderly, and the poor.

“The shared assumption is that the right kind of family is built around the heterosexual couple—a reproductive pairing that is viewed as divinely ordained in religion, crucial in social policy, and a normative imperative in ideology,” Fineman writes. “The target of state policies should be the caretaker-dependent tie, not that between sexual affiliates…The question should not be how we can resuscitate marriage and thus save society and the traditional family, but how we can support all individuals who perform the important societal work of taking care of those who because of their age or physical or mental conditions are dependent upon some form of family.”

Reed political theorist Tamara Metz

Photo by Mike Olfert

In 2006, a group of LGBT and queer activists founded, an online statement put forth as “a new vision for securing governmental and private institutional recognition of diverse kinds of partnerships, households, kinship relationships and families.” Anyone can sign the statement, and among its signatories are prominent scholars, like Judith Butler, and well-known authors, like Dorothy Allison. The statement argues, in part, “To have our government define as ‘legitimate families’ only those households with couples in conjugal relationships does a tremendous disservice to the many other ways in which people actually construct their families, kinship networks, and relationships.”

reed magazine logoSummer 2008