The Gay Edition

(Part One of a Six-Part Series)

by Justin VanLeeuwen

Read Part Two   Read Part Three   Read Part Four   Read Part Five   Read Part Six

As I sit down to write this article on marriage equality, I am overwhelmed by the vastness of the topic itself and daunted by the raw power of emotion, even animus, that finds voice on both sides of the debate. I cannot pretend to be unbiased: as a gay man I find myself deeply invested in this issue. That being the case, I will do my best to present my arguments and accompanying information as objectively as possible, and I will strive to avoid inflammatory language in regard to my opposition. If you oppose marriage equality, I ask only that you give me a hearing – that you set aside your preconceptions about LGBT+ people and listen to what I have to say, if only to understand the perspective of one man who deeply hopes one day to marry.

As I proceed in this discussion, much of what I will say is applicable to the struggles of LGBT+ people for civil liberty in general, and that being the case, I thought it appropriate to begin with a brief comment on our involvement as a group in politics and activism.

I think it’s fair to say that few if any people feel drawn into debates on public policy because of their sexual orientation or identity except insofar as they find themselves disenfranchised on that basis. However, the phrase “gay agenda” and the alarming frequency with which opponents of LGBT+ rights flaunt it would suggest otherwise; it evokes some insidious specter of conspiratorial intent on the part of gays to undermine society. It implies a political scheme in which mutually exclusive groups struggle for political dominance. This is fearmongering in no uncertain terms. In reality, LGBT+ people represent a wide variety of religious and political viewpoints. The fact that we even exist as an identifiable group that could possibly pose a threat to some presumed way of life has not so much to do with us as it does with those who have historically denied us simple, fundamental decencies that people generally do (and should be able to) take for granted. Had LGBT+ people always been equal in society, we would not have been driven to seek haven in ghettoized communities, finding there the simple acceptance withheld from us by society at large, nor would we have been galvanized to political action to fight for the rights guaranteed us as citizens. Allow me to make a flawed analogy: people with brown hair, though identifiable and categorizable, do not constitute a group because they have never been treated as such. That trait has never been used to deny them employment or to fire them;¹ to deny them housing or boarding in public accommodations; to criminalize the act of their purchasing alcohol or the act of serving it to them; to criminalize their private, consensual sexual activity as adults, thus forcing them to register on lists of sex offenders; to justify parents’ throwing their brown haired children out of the house;² to justify murder as an act of momentary insanity provoked by the victim’s revelation of his brown hair.³  All of these examples have been true of LGBT+ people, however.

In this light, is it any wonder that we as a group have stepped forward to demand a change? We are not trying to dismantle the world and recreate it in some stereotypically gay fabulousness. We just want to be able to walk down the street holding our boyfriend’s or our girlfriend’s (and someday our husband’s or wife’s) hand without having to fear that by that simple, unobtrusive act we are doing anything else; we don’t want to make a political statement, and I would argue that we’re not. It is everyone who glares at us as we walk by hand-in-hand who has turned our personal connection into an issue. We are just trying to live our lives.

As I turn to the issue of marriage specifically, I’d like to start with an anecdote. I recently visited a couple of the historic plantation homes in Roswell, Georgia, and during the tour of the Smith Plantation, the docent made a few comments that piqued my interest as he recounted the family history. Archibald Smith, a plantation owner and a founder of Roswell, had two sons, William and Archibald. As the eldest son, William had been groomed to take over the family business and champion the family’s financial success in the future, and he was betrothed to a young woman named Gulielma Riley. Sadly, he died of illness during the Civil War. His younger brother, Archibald, then stepped up to take over William’s vacated position as the presumed family leader for the future. Seemingly as a matter of course, he also married his elder brother’s betrothed, Gulielma. They went on to have four children, two girls and two boys. Because of their fear that one daughter, Frances, might end up an old maid, the parents made their sons promise not to marry before she did. The men dutifully kept their word, one son dying unmarried, and the other finally marrying at the age of sixty in 1940, the same year of yet-unwed Frances’ death.

I present this intriguing snippet of history to illustrate how differently we view marriage today than a mere hundred or hundred and fifty years ago. I dare say that very few of our readers would suggest that male siblings should forego conjugal bliss until their sisters had been married off (a phrase that evokes another still used today – giving the bride away – which hints at how women have been treated in the context of marriage) or that one brother should marry his brother’s fiancé should the engaged brother die. Of course, this family existed in a social strata inhabited only by the very wealthy, and their practices of wealth-and-social inbreeding may not have reflected the habits of people in general. But even the recognition that social status can affect our perspectives on matrimony illustrates how malleably marriage has functioned according to the needs of people.

And if we respond so quizzically to the Smith’s marital practices, how much more shocked must we be today at the legal practice of coverture by which married women lost their economic and legal identity, becoming in a very real sense the property of their husbands. Under coverture a married woman had no right to property, potential earnings, or children; she could not sign contracts or represent herself in court (coincidentally coverture also bears responsibility for the long held belief that marital rape was by definition impossible as was spousal abuse). Wandering even deeper into the past we run into marriage as a financial transaction in which goods exchanged hands: livestock for a wife. And sometimes a wealthy man could afford many such purchases.

In contrast to the various historic manifestations of marriage alluded to here, I would like to offer the following statement made by former Justice William O. Douglas of the United States Supreme Court: “Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” I think this description much better fits our modern conception of marriage. It highlights the relationship that people create between themselves, and in comparison, any marriage motivated by some value system external to the relationship – as with marrying out of religious duty or for money, convenience, or social acceptance or by ordering a bride in the mail – almost unequivocally bespeaks a betrayal of the primary ideal of marriage: love.

What saddens me, however, is the fact that the politicization of marriage equality has turned what should be that sacredly intimate commitment between loving partners into a vote for approval. When a heterosexual couple sends out wedding invitations, they do not include check boxes at the bottom marked “vote yes” and “vote no”; should anyone actually rise and object when prompted to do so or forever hold his peace, unless he reveals some tragically comedic unknown sibling relationship between the couple, other than causing an awkward moment, he will not be allowed to impede the ceremony. However, the moment a gay or lesbian couple steps to the altar of a church that would gladly marry them, suddenly huge sections of the country feel entitled to have a say in their marriage. So we find ourselves trying to curry favor with a majority that wishes to exclude us from what to everyone else is a personal matter. Our marriages suddenly explode into conflicts over “causes,” “political faiths,” and “social projects.”

This debate inevitably finds itself preempted by an argument of definition: marriage as a relationship between one man and one woman or traditional marriage, so-called. But as I have already pointed out, the tradition of marriage is anything but monolithic or praiseworthy, and outside the debate on marriage equality, no one ever introduces language about respective genders in a discussion of marriage. People talk about love, commitment, and sharing a life together. So closely do we equate the functions of marriage with marriage itself, we have an institution called common law marriage in which actions and self-identification provide the basis for determining the existence of a marriage, not vows, ceremonies, or licenses. Statutes on common law marriages differ from state to state, but broadly speaking the two most widely accepted proofs of a common law marriage are cohabitation and a reputation in the community as being married. ⁴ For a gay couple, the difference in treatment is striking. The court can look at a heterosexual couple and apply the adage that if it looks like a duck and quacks like a duck, it’s a duck. But suddenly when a gay or lesbian couple does the exact same thing – lives together, takes care of each other, loves each other, in short, builds a life together over decades – somehow that relationship gets denigrated as less meaningful. We are not demanding that you change your beliefs and lend your moral approval to our relationships. We merely expect you to do us the decency of acknowledging that we make the same commitments and sacrifices and that we invest in relationships as meaningful as yours. “To characterize the plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy ‒ namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.” Perry v. Schwarzenegger, 2010.

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Author’s Note: Five more posts will follow in this series dealing with the broad legal history leading up to the current state of marriage equality today, the specific history of the Defense of Marriage Act (DOMA), the most common social arguments against marriage equality, and my final case for acceptance. Some of the articles are heavily footnoted, but please don’t let that intimidate you. The footnotes hopefully demonstrate my good faith effort to be transparent with information as well as being as informative and specific as possible, but you should be able to read the main article clearly without referring to them, should you wish to do so.

¹ Under current laws, gays and lesbians can be fired on the basis of their orientation in 29 states. Transgender people can be fired on the basis of their gender identity in 34 states. One of the more stinging anecdotes on this point was the federal government’s ban on homosexual employees which found embodiment in a grossly insulting letter from the Chairman of the Civil Service Commission, John Macy, in 1966:

Pertinent considerations here are the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower and living facilities, the offense to members of the public who are required to deal with a known or admitted sexual deviate to transact government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.

² The Williams Institute (a foundation established to perform “rigorous, independent research on sexual orientation and gender identity law and public policy”) performed a study entitled “Serving Our Youth: Findings from a National Survey of Service Providers Working with Lesbian, Gay, Bisexual, and Transgender Youth who are Homeless or at Risk of Becoming Homeless.” In this study they found that “LGBT youth represent between 30% and 43% of those served by drop-in centers, street outreach programs, and housing programs.” However, “given that youth may not be willing to self-identify as being LGBT when initially presenting for services, these data may underestimate the proportion of LGBT youth served by homeless youth providers.” These numbers show that LGBT+ youth are disproportionally represented in the homeless youth population. Furthermore, the top two reported reasons for LGBT+ homelessness involved “rejection of [the child’s] sexual orientation or gender identity” by the family: 46% “ran away” and 43% were “forced out by parents.”

³ The gay/trans panic defense, while used successfully outside this country, has never been admitted as a valid argument in a U.S. court. However, I would suggest that its mere use implies that lawyers believe it could find traction with juries. Thus it speaks to the general atmosphere toward gays and lesbians.

⁴ I should point out that not all states allow common law marriages in the 21st century. However, once a state identifies a couple as having a common law marriage, all states are bound to recognize it. In South Carolina specifically, the state Supreme Court has declared the existence of common marriages in a variety of cases. In Re Greenfield’s Estate (1965), the Court found a woman to have had a common law marriage with her deceased husband based on their ten years of cohabitation and the fact that she had taken on the “usual duties and responsibilities of a wife.” In Jeanes v. Jeanes (1970), the Court ruled that a couple were married under common law despite the couple’s protests to the contrary because the Court did not “find in the record any strong, cogent, satisfactory or conclusive evidence tending to show that [they] are not, in fact, married.” Admittedly the couple in this case was trying to avoid loss of alimony to the wife from a former marriage and had presented themselves as married in the time they had lived together, but the fact that the Court could declare them married against their own claims shows the weight our legal and social system gives to the mere fact that a heterosexual couple acts like they are married.