It’s awesome that the US Supreme Court has upheld gay couples’ rights, but there are caveats to the decision, writes Eusebius McKaiser.
Can we give gay couples the right to get married without waxing lyrical about how marriage is the highest expression of love be-tween two people? I had mixed feelings about the gay marriage win in the US a couple of days ago.
First, the obvious (unless you’re a bigot): it’s totally awesome that the US Supreme Court has affirmed and upheld gay couples’ right to substantive equality. The ruling in favour of same-sex marriage in effect compels the state, administratively anyway, to accept that sexual orientation is no bar to accessing a state-sanctioned institution such as civil marriage.
We will eliminate homophobia in all spaces of society only if, in the first instance, the constitutional edifice of a society nudges us in the right direction rather than sanctioning homophobia. But there are important caveats to what has played out over the past few days.
The kind of language used by the majority on the bench in support of marriage is conservative in a bad way. Three parts of the justification for the ruling included the assertions that a) the right to marriage is a fundamental part of liberty; b) marriage is the ultimate expression of love between two people; and c) marriage is the optimal structure for child rearing. All these claims are as outdated as homophobia itself.
I support same-sex marriage only on the basis of an analysis of dignity and equality. As gay people, we are entitled to the burdens and misery that can also come with marriage. It’s not just about equal fun, but equal entitlement. The parts of the judgment that wax romantically about marriage rights being fundamental to liberty I don’t buy.
I don’t need to be married to enjoy an experience of ultimate relationship freedom. Freedom is indirectly important here, of course, because the right to equality means, in part, granting me the freedom to get married. But talk of marriage as a fundamental part of liberty is over the top; it almost gives the ghastly impression that being able to get married is partly constitutive of liberty.
Then there’s the implication that being single, divorced, cohabiting or being in concurrent consensual relationships can’t be the “ultimate” expression of love. Why not? What makes these judges think my boyfriend and I, who are not married, will magically feel, not just warm and fuzzy feelings if we got married, but that it might even be transformative? Oh please, the number of divorces in our society isn’t slowing, and in the US approving attitudes towards divorce, children born out-of-wedlock, and pre-marital sex, have increased over the past 10 or so years.
There isn’t just a change in public morality away from homophobia towards accepting homophobia as legally and morally wrong. Interestingly, there is also a steady erosion in the beliefs that marriage, and a religious-inspired ideal family structure, are the only acceptable ways of being.
Here, then, is the irony about the reports that suggest a divide between the liberals and conservatives on the Bench last week. The divide is not as sharp as it seemed. There was rude disagreement, sure, about whether gay couples are constitutionally guaranteed the right to marriage.
But the rather outdated and conservative descriptions of the nature and importance of marriage from the liberal majority unite these majority judges with the conservative dissenters. Put differently, a true liberal – as opposed to a conservative liberal – would have argued that gay people should have the right to get married on more limited ground, that is the entitlement to equal treatment before the law. It is not necessary to pretend marriage is some holy thing everyone, pray to God, must have the chance to experience in their lifetime.
In the context of gay rights jurisprudence, it is tactically more important, I admit, to celebrate a judgment that shows the middle finger to homophobia. But it doesn’t mean we can’t think critically about the details of the judgment. I want to live in a society that romanticises only consensual interaction between individuals.
I want that society to be one where there is no hierarchy, from the state’s viewpoint, in how different relationships are viewed. If three hot men and myself agree to get married, or just to live together without a marriage ritual, then the state shouldn’t deem us less worthy than a monogamous gay or straight couple who decided to get married.
That is my beef with the case. It pretends that some relationship types are more rewarding than others. There is no evidence for this other than cultural and religious propaganda. Can we therefore legalise polyamory, please, in the name of democratic romance? Polyamory is surely the ultimate expression of ubuntu.
* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma.
** The views expressed here do not necessarily represent those of Independent Media.