DISCRIMINATION AND INTENT: Gabriel Rosenberg

[This is a very long post, which I'm excerpting. --Eve]

I, as well as many others, have long argued that prohibiting same-sex marriage is a blatant act of sex discrimination that has not been remotely justified. One common response is that it cannot possibly be sex discrimination since both women and men are equally prohibited from marrying someone of the same sex. We then point out that such reasoning was rejected in cases striking down interracial marriage laws. The responders generally then illustrate several ways that situation is different. Two of the reasons most often mentioned are (1) whereas the prohibitions on interracial marriage were based on notion of white supremacy, the prohibition on same-sex marriage is not based on any similar notion of male dominance, and (2) whereas racial differences are superficial, sex differences are real and fundamental. I will try to address a few other suggested differences at the end, but for now I want to focus on these two using this week's Supreme Court decision in Johnson v. California as a springboard for my analysis. ...

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim:

"Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .

". . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." Bradwell v. State (1873) (Bradley, J., concurring).

...

Although the burden rests with those using the gender classification to justify it, I should point out that many of its defenders do indeed resort to stereotypical notions about the proper roles of men and women. This is seen quite often with those that defend the policy by claiming children need a mother and a father. Putting aside for the moment the fact that allowing same-sex marriage does not seem to in any way to cause less children to have mothers and fathers, the arguments about why a parent of each gender is necessary are generally based on stereotypical assumptions about gender roles. These notions can even be seen in the legal briefs of those defending the policy. In addition to the direct appeal to traditional marriage, we also have one brief (pdf) in Washington using the following quote from David Popenoe's Life Without Father:

Through their play, as well in their other child-rearing activities, fathers tend to stress competition, challenge, initiative, risk taking, and independence. Mothers in their care-taking roles, in contrast, stress emotional security and personal safety...While mothers provide an important flexibility and sympathy in their discipline, fathers provide ultimate predictability and consistency. Both dimensions are critical for an efficient, balanced, and human child-rearing regime.

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posted by Eve at 7:32 PM VOTE

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