There were two more state-level setbacks for same-sex marriage today (or, as the Associated Press put it, "Two Victories for Supporters of Gay Marriage Ban"): An appeals court reinstated Nebraska's ban on same-sex marriage, and Tennessee's Supreme Court dismissed an ACLU lawsuit that sought to block a new gay marriage ban from the state's November ballot. (Side note: The AP reports, "Tennessee already had a law banning gay marriage, but lawmakers who supported the proposed amendment said they wanted a backup in case the law was overturned." Liberals should really start agitating to double-bag some of our favorite laws.)
Lambda Legal attorney David Buckel told the AP that Nebraska's ban is "the most extreme of all the anti-gay family laws in the nation."
In an Op-Ed in today's New York Times, Yale Law School professor Kenji Yoshino argues that the checkered reasoning the various courts are using to justify restricting marriage to same-sex couples -- particularly the speciously gay-friendly suggestion, made in both the New York ruling and a prior ruling in Indiana, "that straight couples may be less stable parents than their gay counterparts and consequently require the benefits of marriage to assist them" -- is a sign that opponents of same-sex marriage are desperate. And Freedom to Marry executive director Evan Wolfson suggested that such creative reasoning ultimately makes the bans more vulnerable: "I am upset, frustrated, angry and shocked at the shoddiness of the opinion," Wolfson said. "But in some ways, that's the silver lining. The opinion is so unpersuasive and such a throw back -- it's unlikely to be an impediment to any court ready to apply a more serious level of scrutiny."
In Slate this week, Stanford Law School professor Richard Thompson Ford also looked for hope in the recent setbacks, albeit in a very strange way. His piece argues that opponents of same-sex marriage don't oppose it out of anti-gay bigotry, but out of anxiety over the dilution of traditional gender roles. The vows, symbolism and costuming of weddings have traditionally reinforced gender difference, he writes, and society is attached to "a powerful symbol of sex difference: the tulle-covered bride and the top-hat-and-tails groom."
For example, he writes, "when San Francisco undertook its short-lived experiment with same-sex marriage, it confronted marriage certificate forms with blanks for the names of the 'bride' and 'groom.' The city hastily rewrote them to read 'first applicant' and 'second applicant.' And this is telling. Many people get married because they want the established sex roles the institution provides: a blushing, beautiful, white veil and miles-of-lace bride set off against her dashing, handsome, chivalrous groom. Same-sex marriage seems to undermine these very sex-specific statuses, leaving everyone a sex-neutral 'applicant.' Sure, we could say same-sex marriages involve two brides or two grooms, but something really is lost in this translation: At that point the terms do not describe distinctively gendered roles but are merely gendered descriptions of the same role. We could just as well say 'male applicant' and 'female applicant.' This might explain why so many straight people think same-sex marriage will change the nature of marriage for them."
According to Ford, this traditionalist streak is good news for gay rights, because it means that states and corporations may continue to endorse rights and protections for lesbians and gays, and even for same-sex couples, and will really only dig in their heels to maintain marriage as an opposite-sex institution. (But he doesn't explore what his theory means for transgender people.) He notes that antidiscrimination laws and employer-provided spousal benefits for same-sex couples have made progress in recent years, even as opposition to same-sex marriage has remained strong.
It's an interesting suggestion. As silver linings go, though, this one seems a little slender. Mainstream America may be in love with a photogenic ideal of gender difference, but the notion that it's the state's job to reinforce that ideal is deeply creepy. What other markers of gender difference might the government need to enforce? And even if all of the 1,138 federal rights, responsibilities and protections that marriage currently confers on married couples were eventually conferred on same-sex partnerships, limiting the legal institution of marriage to certain citizens while excluding others is still stopping short of full equality, and that's unacceptable.