Integrating Equal Marriage

9 Pages Posted: 18 Jul 2015

See all articles by R. A. Lenhardt

R. A. Lenhardt

Fordham University School of Law

Date Written: July 16, 2015

Abstract

This Symposium on the Defense of Marriage Act (DOMA) -- though prompted by President Obama's February 2011 announcement that the federal government would no longer defend that statute -- raises important questions about the terms on which the fight for equal marriage rights for LGBT couples should be waged. In essence, equal marriage advocates -- even as the fight for relationship recognition continues in states across the country -- face a choice about how best to frame the claim for equal marriage rights.

To date, the primary strategy has been to emphasize the extent to which gay and lesbian couples are no different than straight couples in their desire for a loving relationship and appreciation of the norms and values reflected in traditional marriage. This approach, importantly, has sometimes meant emphasizing the extent to which LGBT couples, because of their asserted willingness to embrace traditional marriage norms, might even be better for marriage than some of the straight people now legally entitled to enter into it. On the one hand, advocates can choose to stick with the status quo and continue to deploy this strategy. On the other hand, though, they can explore a new strategy, one that, rather than emphasizing sameness, celebrates difference and the full spectrum of familial arrangements and choices for structuring intimate relationships evident in our society.

The former approach, which I call the “gays and lesbians are good stewards of marriage” argument, carries rhetorical punch and has the benefit of having been successful, as the slow, but progressive expansion of marriage rights in jurisdictions across the country attests. At the same time, I contend that it raises some serious concerns. To the extent that it suggests that some people might be “good” for marriage, while others could be “bad” for it, the “good stewards” argument risks being particularly divisive. It places LGBT advocates in the position of denigrating the intimate choices of those who do not comport with traditional marriage norms. And, in this connection, it also risks singling out groups like African Americans, who have high rates of non-conformance with such norms, for particular opprobrium.

In the pages that follow, I thus contend that advocates for LGBT rights should abandon the “good stewards” argument and replace it with one that emphasizes the need to recognize an expanded range of intimate arrangements, not just those that comport with traditional norms. While the struggle for marriage rights could ultimately be won by using the “good stewards” approach, it is not at all clear that as a moral, or even a strategic matter, it should be. The terms on which equal rights for LGBT individuals get secured matter. They matter for the LGBT community, but, as I suggest in the pages that follow, also for others.

Part I of this Essay explores the contours of the “good stewards” argument just described by, inter alia, considering the strengths and weaknesses of a recent New York Times article written by columnist Frank Bruni, which essentially asserts that LGBT couples would be a net benefit to the institution of marriage, bolstering it in ways that the intimate choices of some straight individuals have not. Part II highlights the risks inherent in arguments that seek to separate the “good” from the “bad” when it comes to marriage. While noting the problems of heteronormativity and critiques of “normal” sex or intimacy laid out by queer theorists and others, this section primarily addresses the little discussed race effects of the “good stewards” argument. In particular, it engages with the ways in which it might work further to stigmatize black families and intimate arrangements as outside the main of American society. The low rates of marriage mentioned earlier and comparatively high incidence of cohabitation and non-marital births in the black community have long made African Americans a popular target for conservatives. The section contends that the adverse race effects of the “good stewards” argument should not be tolerated and, even more, might be holding the movement for equal marriage back, to the extent that it serves to alienate Blacks and others who could be important coalition partners for LGBT community members seeking not only marriage, but recognition and protection for their families. Finally, Part III concludes the Essay by exploring the benefits of an alternative approach emphasizing difference and the need to recognize and affirm a range of intimate arrangements, not just those grounded in legal marriage. In addition to highlighting increasingly important questions about marriage and how it has been structured in our society, the section discusses the ways in which the alternative approach proffered might serve to alleviate tensions evident in the relationship that the LGBT community has with African Americans and possibly also heal divisions within LGBT America. In addition, it briefly emphasizes the enhanced capacity for coalition building in and outside of the marriage context that a strategy urging the recognition of multiple intimate arrangements brings. In sum, this Essay underscores that, the “good stewards” argument notwithstanding, it can sometimes be good to be “bad.”

Keywords: race, marriage, equality, sexuality

Suggested Citation

Lenhardt, Robin A., Integrating Equal Marriage (July 16, 2015). Fordham Law Review, Vol. #81, No. 781, 2015, Available at SSRN: https://ssrn.com/abstract=2631652

Robin A. Lenhardt (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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