Over the past several years, the legal and social debate over same-sex marriage has definitely had its interesting moments, but the various judicial opinions which have affirmed a legal right to same-sex marriage are often themselves rather boring, reading like cut-and-paste jobs from each other, as well as the briefs (and press releases) of mainstream LGB organizations. There are strong tropes running through and across these judicial opinions (e.g. ‘respectable gay couple approaches respectable court wanting respectable right that respectable heterosexual couples have … ’), so much so that one wonders if the opinions we are reading are somehow computer-generated. Is there an app for that?
In many ways, the robotic idea of equality that is being articulated in these cases is, I suspect (and hope) the consequence of the particular plaintiffs and issues which mainstream LGB organizations are recruiting for and representing in these ‘marriage equality’ cases. This is not to say that Edith Windsor is a robot, but it is to say that mainstream LGB organizations were likely attracted to her as a plaintiff because of the ease in which her estate tax issues could be fit within the two-dimensional idea of equality that these mainstream organizations are making out—and which judges and justices are agreeing to.
In my blog posts from this past month (here and here), I’ve suggested the two-dimensionality (if not unidimen$ionality) of the vision of equality made out by Justice Kennedy’s majority opinion in United States v. Windsor. Justice Kennedy’s narrow vision of equality is a constraining one. But it is also an enabling one, allowing him to write things like “DOMA writes inequality into the entire United States Code[!!!]” (p. 22, slip opinion) without once pausing to consider how—if it was actually true that we had a U.S.C. completely and utterly dependent on the marriage category—what that would actually mean about the U.S.C.’s commitment to equality—for, say, unmarried persons—in the first place.
Is there a way out of this reductive mess? In other words, is there a way to get courts (including the Supreme Court) to talk about equality in a way more attuned to the complexity of this idea in the real world? Put another way, is there a way to conjure a queer Edith Windsor, in the hope that this kind of plaintiff will allow for a more human(e) articulation of equality to emerge from American judges and their resolutions of same-sex marriage controversies?
In trying to answer this question—and I’ll be the first to admit that this blog post is a first draft on an emerging set of thoughts in this respect—let me first point out that Edith Windsor was ‘queer’ in one important way, namely that she was in a childless marriage. As a result, it was arguably harder for Justice Kennedy to make United States v. Windsor all about children. Certainly, the cut-and-paste arguments about how “second-tier marriage . . . makes it . . . more difficult for the children [of these relationships] to understand the integrity and closeness of their own family” (p. 23, slip opinion)—as if children are pre-programmed robots and their Microsoft engineers forgot to include the expression “domestic partner” in their factory-loaded spellcheck—are there, but this is an opinion remarkably non-obsessed with children.
That is to be commended. However, much of the rest of Justice Kennedy’s discussion in United States v. Windsor about the problems with DOMA is problematic, if not also incoherent. For example, on p. 23 of the slip opinion, Kennedy laments how “[u]nder DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways” (emphasis added). By p. 24 of the slip opinion, however, we see Kennedy lamenting how DOMA “divests married same-sex couples of the duties and responsibilities that are an essential part of married life” (emphasis added). Examples of such ‘essentialities’ include prohibitions on recognized ‘spouses’ of Senators from accepting “high-value gifts from certain sources” (p. 24, slip opinion) and also burdensome paperwork requirements for ‘spouses’ of all types—Senatorial or non-Senatorial, rich or poor. A Senator Windsor would do well in Kennedy’s world of equal opportunity.
To find a queer Edith Windsor, one has to dig deeper. And indeed, six feet under the surface of Justice Kennedy’s opinion, there might be something. In a somewhat throwaway example, Kennedy mentions how DOMA prevents same-sex couples “from being buried together in veterans’ cemeteries” (p. 23, slip opinion). Could there be something queer in this necropolitics?
I’m not sure, but Kennedy’s opinion (overall) can be read to equate marriage with life, or at least any life with dignity—any life worth living (presumably). And if Marriage = Life, then presumably Divorce = Death. Could a divorced Edith Windsor—rather than, say, a truly dead Private Windsor—claiming Social Security benefits due her as an ‘ex-spouse’ be our evasive and counter-factual queer plaintiff then?
I will be accused of suffering from a lack of sensitivity, perspective, and realism here. Yet 20 years ago, an attorney remarked to the New York Times that “I used to say, ‘Why do we want to get married? It doesn’t work for straight people . . . .’ But now I say we should care: They have the privilege of divorce and we don’t. We’re left out there to twirl around in pain.” And divorce rights are integral to future arguments about DOMA’s Section 2, and states’ refusals to issue divorces for other state’s marriages they do not recognize in the first instance. Indeed, divorce—the death of marriage—is, in many ways, the story left untold in our present obsession with marriage. Along with queerness.
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