Afterword - Straightness as Property: Back to the Future - Law and Status in the 21st Century
12 U. Fla. J. L. & Pub. Pol’y 71 (2000)
20 Pages Posted: 9 Oct 2015
Date Written: 2000
As is evident from the other works in this Symposium, throughout history in both the United States and the greater Western World, status-based exclusion of individuals and groups from property rights has been central to the existence of political and social hierarchies. Specifically, exclusion based on status — whether it be nationality, culture, race, sex or sexuality — has plagued our history and has been integral in the formation and development of both constitutional and property law regimes. Consequently, both regimes are at best uneven in the grant and distribution of rights and benefits.
A forward-looking examination of the link between status and property law reveals the persistence of the concerns addressed in the three preceding articles. The exclusion of persons from enjoyment of full property rights based on non-normative sexuality status, that is, nonheterosexuality, routinely and systematically denies property rights to an entire category of sexual/social minorities. This denial, contrary to liberalisms' basic goal of equality and justice for all persons, results in injustice and inequality for an entire group of citizens. Although sexual minorities have always been part of our social fabric, it is only recently that issues of discrimination and equality have come to the forefront in the social, psychological, and legal realms.
More specifically, in recent years, the debate over the denial of property rights to same-sex couples has emerged as a key theme in equality discourse and will undoubtedly extend into the foreseeable future. At the heart of the debate is whether same-sex couples should be given property rights equivalent to those of married couples who consequently — by tradition, practice, and law — are couples of the opposite sex. Primarily, just as African Americans and women were historically and systematically denied equal property rights and benefits, gays/lesbians are presently denied property rights based purely on status. This occurs primarily through the denial of marital rights, benefits, and protections, and the denial of any alternative means of obtaining them. In recent years, challenges to these laws have forced scholars and the judiciary alike to begin to explore, redefine, and redetermine the law's proper parameters in this area.
In order to elucidate the history, legal development, and the possible future of liberalism's equality goals in this context, this Afterword begins by reviewing pertinent marriage laws — particularly congressional regulation of marriage. We then examine how state and federal court decisions reveal the changing and evolving social fabric within which the limited definition of marriage, and the closely tied definition of family, play themselves out. An examination of the different “equality” afforded to gays/lesbians and heterosexuals follows. The work, then, describes the relationship between marital status and property rights, explaining the consequences of a narrow legal definition of marriage within shifting social paradigms. The piece concludes that just as there came a time in the liberal republicanism paradigm to recognize its flawed exclusionary origins (of women, African Americans, Native Americans and Mexicans), the time has come to cease the de jure creation of a second-class citizenship that denies sexual minorities property rights based on status.
Keywords: human rights, property rights, sexual orientation, homosexuality, nonheterosexuality, non-normative sexuality, gay and lesbian studies, DOMA, Defense of Marriage Act, same-sex marriage, marital status as property rights
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