Final Paper

FYS 6 Paper #3: Gender & Sexuality, Law & Marriage (1541 Words)

Recently, I posited in a blogpost located here that the SCOTUS ruling in Obergefell v. Hodges in 2015, that the right for same-sex couples to be married under the same terms and conditions as opposite-sex couples is guaranteed by the Due Process Clause and the Equal Protections Clause of the 14th Amendment (Kennedy 2015), was the most important advancement in LGBTQ+ rights in the past fifteen years at the time of writing. I chose this event based on an observation that marriage is a core value of the idealized typical American family. Borrowing a term from feminist philosopher Audre Lorde, the “mythical norm” (the set of identities considered to hold the most power and privilege in a society (Lorde pg. 855, 1984)) in terms of a family would consist of a man and woman who are, heterosexual, cisgender, White, Christian, young, financially secure, have children together, and are married. I chose this event believing that if same-sex marriage was given all the same legal respect as a “normal” marriage, then it would normalize same-sex couples as a whole. Marriage would socially legitimize queer people to a heteronormative American worldview and prove that if a same-sex couple was capable of something as integral to the mythical norm of family as marriage, then surely they could also be trusted in a society of straight White male employers and lawmakers with having children, careers, and rights. Upon further investigation into the history of marriage laws, it seems lawmakers and voters were also well-aware of this cultural significance around marriage and its power as a socially legitimizing force and pushed back hard to prevent groups they considered below them from obtaining this “legitimacy” as people. Laws and restrictions surrounding marriage have historically legally undermined the citizenship of LGBTQ+ and racial minorities because marriage is integral to the model American family and a minority’s right to marry would be the first major step towards civil equality.

The word miscegenation (meaning the biological mixing of races typically when one is White) was originally coined during the American Civil War in an anonymously written republican pamphlet calling for the mixing of races and other radical (at the time) ideas about race which was actually written by confederate editors to make Abraham Lincoln’s republican party appear to hold these (at the time) extremist views and objectives (Kaplan pg. 274-343, 1949). Despite originating from a hoax pamphlet, the term and fear of “miscegenation” survived and justified explicitly racist marriage laws far, far after the 14th amendment. Technically, miscegenation only describes the sexual act of reproducing, but:

“Because marriage carried with it social respectability and economic benefits that were routinely denied to couples engaged in illicit sex, appeals courts adjudicated the legal issue of miscegenation at least as frequently in civil cases about marriage and divorce, inheritance, or child legitimacy as in criminal cases about sexual misconduct.” (Pascoe pg. 50, 1996)

This phenomenon demonstrates how laws surrounding the personal choice of marital partners and private intimacy, such as sodomy laws, are not only rooted in the preservation of heteronormativity and a “pure” White race, but are also difficult to fully enforce anywhere outside the moment a marriage license is requested by an “illicit” couple due to the privately practiced subject matter. These marriage restrictions are an attempt to control private and inevitably practiced freedoms in the name of discrimination. In the legal case Naim v. Naim the Supreme Court of Virginia stated that “the State’s legitimate purpose was to ‘preserve the racial integrity of its citizens’ and ‘prevent the corruption of blood’” (Eskridge pg. 796, 1998) which allowed Ruby Naim and Han Say Naim marriage to be annulled under miscegenation laws. These laws were even established to not be discrimination so long as both the White and non-White parties involved are disciplined equally (Pascoe pg. 50, 1996). These attempts at control over the ethnic and racial identity of the population through marriage laws even bleed over into matters of citizenship and migration. Until the 1960s, if a woman born in the U.S. was to marry a person who was not and could not obtain citizenship, that woman would be “giving up” their own citizenship and ability to naturalize (Supreme Court Rules American Women with Foreign Husbands Lose Citizenship, 1915).

The fight for same-sex marriage forced the United States to reevaluate its own views on expected household gender roles and the very definition and purpose of marriage itself going forward. One of the biggest struggles in the early fight for same-sex marriage was the ingrained belief within people that marriage was inherently something that occurred between a man and a woman, so the idea of a same-sex marriage was as big a logical fallacy as spaghetti without noodles: 

(Which One…) Similar to miscegenation laws, whether or not ame-sex marriage restrictions violated the rights of a protected class fell into debate. In the case of John F. Singer and Paul C. Barwick v. Lloyd Hara, “[the appellants] have failed to make a showing that they are somehow being treated differently by the state than if they would be females” (Eskridge pg. 800, 1998) which led to the ruling that denial of same-sex marriage consisting of two men is not sex discrimination because a same-sex marriage consisting of two women would also be denied, an ideology known as the equal application theory. Some states attempted to compromise with an approximate but ultimately meaningless term “civil union” which fundamentally functioned as a marriage but was only recognized on a state level (and many would be annulled later as laws tugged back and forth on the matter of same-sex “unions”. These temporary titles only acted as another way to “other” same-sex couples and led to petty distinctions such as in adoption forms pre-2016 that only had “single” or “married” as declarable statuses. In 2015, several small cases surrounding the unclear status of long-term same-sex couples and their specificities from Michigan, Ohio, Kentucky, and Tennessee filed federal district court cases that culminated in Obergefell v. Hodges which concluded in the establishment that same-sex marriage was a fundamental right that must be granted and recognized by all 50 states, the District of Columbia, and other US territories. This decision also guarantees marriage for all LGBTQ+ couples as per the decision that sex and gender is no longer a factor in whether or not a couple can be married.

It seems that Obergefell v. Hodges was such a landmark victory for LGBTQ+ people that the civil liberties train has only picked up steam since. I remain cautiously optimistic that my first hand experience with very politically active and vocal members of Generation Z and millennials is an accurate representation of the population’s opinions on progressive policies and the struggle for equality for all marginalized groups. In my introduction I presented same sex marriage as an appeal to straight sensibilities but as my fellow student put it in her blog (which can be found here): 

“Post-Obergefell, many homophobes felt pressure to stay silent, as their view on marriage was now unpopular with both the people and the law. Even the strongest source of homophobic legislation in the United States, the Republican Party, cannot publicly [sic] homophobic, with Trump having spoken positively towards gay and lesbian Americans since 2016” (Wells 2023). 

Now it’s the homophobes who have to hide and practice their beliefs privately. Same-sex marriage is no longer a generous extension of rights but integral to what marriage is. Of course though, a larger LGBTQ+ force also means a larger anti-LGBTQ+ force, as 2022 saw the aptly-nicknamed “Don’t Say Gay” law (HB1557) passed by the Florida Senate which

“bans public school districts from teaching about sexual orientation or gender identity in kindergarten through the third grade, or ‘in a manner that is not age-appropriate or developmentally appropriate for students’—language that critics say could extend the ban to higher grade levels.” (Carlisle 2022)

This act was signed by the governor of Florida, Ron DeSantis, a conservative republican currently gaining much notoriety for his several attacks on the LGBTQ+ community and “woke” culture. He is currently running for president, generally being considered the only republican competition for Donald Trump. Attitudes as a whole against LGBTQ+ people have grown quite violent (see any news story involving drag queens or trans youth in Texas and Florida), but I compare it to a cornered and scared animal, resorting to desperate tactics unable to admit defeat or adapt to the environment. With same-sex marriage fully legalized and protected, the focus has shifted now towards transgender rights and with that, intersex people, whose struggles are unique from both non-straight and transgender people, are even starting to appear in the public consciousness (Fellows, 2023). American law has tried its best to restrict the private lives and activities of its population, but now it has a chance to redeem itself and act as the hub for LGTBTQ+ freedom and equality throughout the world. Obergefell v. Hodges was a massive win for the entire community and I still argue, was the catalyst for all modern LGBTQ+ activity, proving to the world that queer people are no different from the rest and proving to the community that united they are truly capable of building a better world generation by generation. 

Works Cited:

• Kennedy, Anthony. 2015. James Obergefell, et al., Petitioners v. Richard Hodges, Director, Ohio Department of Health, et al. Supreme Court of the United States.

• Lorde, Audre. 1984. Sister Outsider: Essays and Speeches. S.L.: Penguin Books.

• Kaplan, Sidney. "The Miscegenation Issue in the Election of 1864," Journal of Negro History, Vol.34, Issue 3, July 1949, 274-343.

• Pascoe, Peggy. “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America.” The Journal of American History, vol. 83, no. 1, 1996, pp. 44–69. 

• “Dec. 6, 1915 | Supreme Court Rules American Women with Foreign Husbands Lose Citizenship.” n.d. Calendar.eji.org. Equal Justice Initiative. Accessed December 1, 2023. https://calendar.eji.org/racial-injustice/dec/6.

• Eskridge, William N, Nan D Hunter, and Nan S Hunter. 1998. Sexuality, Gender and the Law. Foundation Press.

• “So... Which One of You Is the Fork?” n.d. Webcomic. https://pbs.twimg.com/media/BqBCeQJIAAAXKV0.jpg.

• Wells, Alex. “Marriage isn’t the Problem” Final Paper, Blogger, 4 Dec. 2023, https://alexsverycoolblogfys6.blogspot.com/2023/12/final-essay.html

• Carlisle, Madeleine. 2022. “Florida Just Passed the ‘Don’t Say Gay’ Bill.” Time. March 8, 2022. https://time.com/6155905/florida-dont-say-gay-passed/.

• Fellows, Olivia. 2023. “Intersex People Are a Vital Part of Gender Affirmation Discourse.” Big Rapids Pioneer. November 13, 2023. https://www.bigrapidsnews.com/news/article/gender-affirmation-discourse-include-intersex-18406178.php.

Included Concepts/Themes

- Citizenship/Legitimacy

- Law as a social construction

- Historical events affecting the LGBT community

- Marriage (interracial, same-sex, as an institution which produces and reduces rights)