44 Pages Posted: 12 Dec 2010 Last revised: 29 Aug 2011
Date Written: December 10, 2010
Two major approaches generally characterize the political left’s debate concerning same-sex marriage – marriage equality, viewing the right of access to marriage as an important civil right, and what I will call “marriage skepticism,” viewing the effort to obtain marriage rights as troubling limited and assimilationist. But a third outlook exists: the underexamined position that simultaneously supports same-sex marriage and critiques marriage. Existing scholarly efforts have not articulated this third position in a way that synthesizes the ideas of marriage equality and marriage skepticism.
In this Article, I set forth an approach for what I call “skeptical marriage equality,” exploring how we can be skeptical of marriage as a legal category and of its privileged place in law and society, but also favor marriage equality for same-sex couples. Exploring the feasibility and possibilities of this hybrid position is critical to a nuanced approach to same-sex marriage. Without this position, the law affecting family will continue to perpetuate a marriage-based system of legal and public support to the exclusion of other family models.
How can we harmonize the powerful and compelling critique of marriage advanced by feminist and gay rights scholars with support of same-sex marriage? This Article argues that rather than being entirely exclusive of one another, as is often assumed to be the case, marriage equality and marriage skepticism share more than is commonly recognized. We might actually view marriage skepticism’s interest in pluralism and family function as paving the way for the movement for marriage equality. Conversely, marriage equality may help achieve some of the goals of marriage skepticism. Same-sex marriage may not only make marriage internally less hierarchical, as feminists have argued, but may also, and even more importantly, assist in unsettling the hierarchical relationship between marriage and other intimacy forms to support a more pluralistic vision for state recognition of family connection. The pursuit of same-sex marriage facilitates the pluralistic goals of the marriage critique by drawing attention to the gender-hierarchical and sexuality norm-enforcing construction of traditional marriage. Marriage equality may also promise to lead to greater pluralism as advocated by marriage skepticism, by constituting marriage in a way that redefines it away from sex-difference and toward core values that are at stake in marriage, such as commitment and caregiving. A fundamental shift in the socially-privileged status of marriage may pave the way toward more functional understandings of family and intimacy overall.
Keywords: marriage, gender, family law, same-sex marriage, marriage equality
Suggested Citation: Suggested Citation
Kim, Suzanne A., Skeptical Marriage Equality (December 10, 2010). Harvard Journal of Law and Gender, Vol. 34, 2010. Available at SSRN: https://ssrn.com/abstract=1723602