Recent controversy over so-called “bathroom laws” in several states has raised anew the question of marital equality. If a man becomes a woman, can he/she then obtain a marriage license if state law says he/she is legally of the sex on his/her birth certificate? And why would that person try to obtain a marriage licenses in a place where they knew the authority was hostile to them? Why not just go where people are more open-minded?
The answer is that, in these cases, marriage is a form of public protest, which is often necessary for an oppressed minority to gain the civil rights enshrined in the U.S. Constitution. It’s no different than when blacks went to register in all-white schools after Brown v. Board of Education; the U.S. Supreme Court says it’s a civil right, so it should be recognized as such.
In ruling on the nature of a civil right, the Supreme Court is using the rule of law to constrain the state’s abusive use of power. A government can only exercise its power through the agency of the human beings entrusted with that power, and it is these people – people like George Wallace and Kim Davis – who abuse the power of their offices. Thus, it is the law contained in the U.S. Constitution that the Supreme Court uses to constrain that power.
There is a major difference between the struggle of African-Americans to claim their civil rights and the struggle now undertaken by the LGBT community. One was a public attempt (enrollment) to gain legal validation of a public act (learning) while the other is a public attempt to gain legal validation of a very private act. And as always, the resistance to the attempt is just a cover for condemnation of the act. Just as the racists hoped segregation could keep blacks from becoming educated, homophobes hope marriage definition and sexual identity laws can keep homosexuals from having sex.
The issues run so deep that they touch the very nerves of individual and tribal identities and the ownership of power. For most of its history the U.S. has been governed by a white male Christian elite. These were the people who had the power to govern and they governed with the attitude that their actions, desires, and values were superior to everyone else’s. While they talked about equality and civil rights, they clearly meant to extend those attributes only to members of their own tribe. They recognized that equality derives from power; deny the power and one can deny the equality. No one in power wanted that power going to anyone outside the ruling tribe because of the terrifying unknown of what kind of laws non-white, non-male, non-Christians might promulgate and how those laws might challenge the values – indeed, the very identities – of those in power.
Equality before the law was gained only through protest, which resulted in interpretations of the law that constrained the power of the white male Christian tribe; wrested it away, really, and handed it to those who had been oppressed by it. And in the case of LGBT rights and same-sex marriage, that means that a deep, basic human urge is the ground on which a sophisticated political battle is being fought.
That battle is often the subject literary expression and academic study. Scholars have long held that as far back as Thomas More’s “Utopia,” state oppression has been framed by strict control of sexual congress. Robin West, professor of law and philosophy at Georgetown University, recognized the use of sex as a weapon against governmental oppression in a 2005 essay titled “Sex, Law, Power, and Community.” West wrote, “… particular, concrete, impassioned, and irrational sex can be potent as a political force against the evil of unconstrained state power”(247).
By “impassioned and irrational,” West meant sex for its own sake, for the pleasure of sharing it with one’s lover and not for procreation or to uphold ancient tribal mores. One assumes that the homosexual and transsexual Americans who are seeking marriage licenses are having such sexual relations, and that by appearing in public as loving spouses they apply that potent political force to which West refers.
West’s essay was included in a book titled “On Nineteen Eighty-Four: Orwell and Our Future,” so the professor obviously was thinking in terms of the oppression of sex by a dystopian society. But state legislatures that outlaw natural human activity in an attempt to define “normal” are no less oppressive and, when viewed in their totality, no less dystopian than the imaginary ones created by Orwell, Margaret Atwood, or Aldous Huxley. A state in which hard-to-obtain identification papers are used to disenfranchise whole classes of voters, or where draconian medical clinic laws are used to deny adequate health care to half of the population is every bit as dystopian as a state where women are classified according to their breeding ability or boys are whipped into unconsciousness as a form of entertainment. In all of these cases power is being used outside the rule of law in order to preserve that power in the hands of the white male Christian elite.
When LGBT couples show up in a decidedly hostile governmental environment and insist on being issued a marriage license, as the U.S. Supreme Court has ruled is their right, they are staging the only protest they can against the abuse of power. They are applying a political force against the evil of unconstrained power.
I remember when the year 1984 came and went, prompting vigorous but brief discussion of the state of freedom in America, and one of the prevailing messages at the time was that, no, Orwell’s dystopia hasn’t happened yet, but we’re not so very far from allowing it to happen. We’re still not that far; if anything, we’ve come closer.
Prof. West’s essay posits that sexual rebellion works hand-in-hand with rule of law to deny “the state” absolute and oppressive power that would trample fundamental human rights. We need to keep that in mind when debating the rights of people to marry; are we really talking about law, or are we just talking about power?