What Went Wrong on Election Day and Marriage Proposals is Now in Paperback

Posted on December 1, 2008
Filed Under Book Review, Same-Sex Marriage | Leave a Comment

We all know what went right on Election Day.  Barack Obama was elected president.  That was the good news.  I was literally partying in the streets of my neighborhood (Chelsea) as the bad news came trickling in.  California’s anti-gay marriage Proposition 8 was ahead.  It was close, though.  And we were celebrating.  Horns were honking, people were spasmodically screaming out of their windows.  It was like the movie Network in reverse.

But by the day after the election it was becoming increasingly clear:  gay and lesbian Californians had lost the legal right to marry.  It was shockingly true.  And suddenly California queers were madder than hell.  Yes it was a shock, but should it have been a surprise?  Afterall, a late SurveyUSA poll showed Prop 8 behind by only three points–within the (four point) margin of error of the poll.

What went wrong?  Were we lulled into a certain complacency by the mainstream media’s puffy coverage of the George Tseki wedding?  Did we not see that this sort of coverage simply reinforced the notion that gay marriage was a luxury for rich celebrities?  And did we not see that this coverage trivialized gay marriage by over-emphasizing the wedding ceremony?

In the last days of the campaign to stop Proposition 8, queer leaders apparently became aware that they might be in trouble.  They quickly raised some cash.  Huddled for a little while.  And emerged with a television ad starring Diane Feinstein.  The problem with this is not just that queer leaders over-estimated the ability of Senator Feinstein to shape public opinon.  No, the much bigger problem is that queer leaders viewed this as two competing advertising campaigns with some high class public relations work thrown in. 

Perhaps queer leaders should consider reports that since the election, California public opinion has turned against Propostion 8–and the recent massive street protests may have tipped the scales.  In other words, street protests may be better than television advertisements at changing the opinons of voters.  They’re cheaper too.  And they can also be a lot more fun.

As a New Yorker, I am concsiously contemplating this ‘into the streets’ message, because I read in the Times yesterday that the New York State Senate may postpone a vote on gay marriage indefinitely.   Meanwhile, my partner and I are considering the fact that gay marriages are now up and running in Connecticut.  MIght this possibly be the time for us to elope to say… New Haven?

So it is perfect timing that NYU press publishes Anita Bernstein’s book:  Marriage Proposals:  Questioning a Legal Status in paperback today.  I resisted this title when it was first published in hardcover two years ago.  Why the need to question the legal status now, I wondered.  And might these new “marriage proposals” be yet another means to legally define a “separate, but equal” status for gays and lesbians?  Well, the answers to these questions are a lot more complicated–and interesting–than first met my eye.

In the brillianly-written forward, Anita Bernstein effectively deconstructs the institution of marriage in the United States.  Ultimately she concludes:  “Marriage, in short, is a peculiar status.”  She points out the inherent contradictions within this “peculiar status.”  Specifically the question:  why is this institution reserved for cohabitating partners in a monogamous relationship?  And is this truly a universal institution or is it a legal carve-out:  effectively granting special status for a select group at the expense of the rest of the population?

What follows are several interesting essays that approach the institution of marriage from a variety of disciplines.  Lawrence Rosen writes an anthropological perspective.  Peggy Cooper Davis draws parallels between the denial of family rights to American slaves and the denial of marriage rights to same sex couples today.  But for me, the most interesting essay in the book was, “Taking the Government Out of the Marriage Business.”  The reason why I found this essay to be so fascinating was quite simply the passion of the authors:  Dorion Solot and Marshall Miller.  Both are affiliated with Alternatives to Marriage (aka unmarried.org).

Ms Solot and Mr. Miller do an excellent job of putting American legal marriage into historical context–arguing that state involvement in American marriage contracts didn’t begin until the nineteenth century.  And it was an inherently sexist institution from the beginning. 

Ms. Solot and Mr. Miller ask informed, intelligent, provocative questions along the way.  Such as:  “Why should a couple who marry in Vegas knowing each other for a week gain more legal recognition than an unmarried couple who have shared their lives for thirty years and raised children together?”

Taking the government out of the marriage business, the authors argue, would eliminate, “…the archaic notion that legally married couples are superior to unmarried families.”  Adding:  “Unmarried families should not be granted rights by squeezing them under the ‘married’ umbrella.”  The authors also point out that according to a recent census, forty-six percent of adult Americans are currently unmarried.  In other words, in spite of all the subtle and unsubtle ways our society promotes marriage, in spite of the (let’s face it) special rights our legal system grants married couples, in spite of a multi-billion dollar wedding industry… in spite of all that, almost half of our adult population is currently unmarried.

My head was frankly spinning just a bit at the end of this book.  Marriage is certainly a special status–even a privilege.  We all know from Perry Mason that–in most cases–a person cannot be compelled to testify against his or her spouse.  But not all of us are aware of the social security benefits denied to unmarried (straight and gay) participants.  Marriage also involves a myriad of potential financial downsides.  Remember that scene in Mildred Pierce when Wally informs Mildred that she’ll have to divorce Burt, because of the debts he’s run up?  The novelist Frederick Ted Castle once wrote:  “Marriage is a very sacred institution; it means you’ve finally met someone you’re willing to share your money with.”

Yes marriage needs reform. But the complete elimination of (legal) marriage isn’t likely to become politically possible any time soon.  And so, having read these proposals, I came away thinking that perhaps the best possible choice would be all of them.  In other words, universal access to all of the available legal options: marriage, domestic partnership, civil union, common law marriage etc.  We should also extend “The Hawaii Experiment,” a domestic partnership law that does not require couples to be connected by sexual or conjugal association.  And don’t give up the fight.  Ultimately, ours must be a battle for universal human rights.

Marriage Proposals:  Questioning a Legal Status edited by Anita Bernstein is now in paperback .  New York University Press.



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