Missing in Action? Searching for Gender Talk in the Same-Sex Marriage Debate

Abstract:     
The otherwise expansive public debate on same-sex marriage - which has reached full throttle in recent months - remains curiously incomplete. Discussions about sex-based discrimination, women's subordination, and the quest for gender equality (discussions that I call gender talk) are virtually impossible to locate in the popular discourse about same-sex marriage. This is so even though the scholarly literature has analyzed such issues in depth, a few judicial opinions have used gender talk to find invalid laws denying same-sex couples the opportunity to marry, and popular culture seems preoccupied with gender talk in related contexts.

In addition to providing clues about how people talk and think about same-sex marriage, the public debate has become especially important because of ballot measures in several states asking voters to take a position on constitutional amendments to restrict marriage to one man and one woman. At the end of the day, how members of the general population understand the issues raised by same-sex marriage could prove more influential than the approaches of judges, legislators, and legal scholars.

This essay first documents the absence of gender talk in the public debate about same-sex marriage. It then sketches out the sex- and gender-based arguments that have emerged in the scholarly literature and judicial opinions about same-sex marriage, developing these arguments to make them most relevant to the gender talk prevalent on other topics occupying prominent positions in the popular culture and public consciousness. The place of gender roles, gender norms, gender performance, and gender neutrality in contemporary family law receives particular attention. Next, this essay examines the gap in the public debate, exploring possible reasons for the absence of gender talk and also looking beneath the rhetoric of the same-sex marriage debate to expose the gender talk hidden in the arguments for retaining traditional marriage restrictions. Finally, this essay shows how gender talk can usefully contribute to the ongoing debate on same-sex marriage.

Number of Pages in PDF File: 39

Keywords: family law, marriage, sex or gender discrimination, gay rights

Accepted Paper Series