Law, Social Justice, and Marriage: An Anti-Essentialist View

Abstract

At the forefront of the culture wars today in the United States is the issue of or equality. Advocates of equality eschew the term same-sex marriage or marriage as it denotes a separate kind of institution, something really marriage. term equality, on the other hand, suggests that what the law commands-equal protection in terms of rights and responsibilities-is fulfilled.1 In other words, equality extends to all people the stabilizing legal expectations that comes with that are reinforced in hundreds of different ways each day. These benefits break down roughly into six categories, including: death benefits, entitlements, evidentiary privileges, inheritance, surrogate decisions making issues, and tax issues.2 Yet, the legalistic explanation of is not enough; it also has a social component. United States Supreme Court, in its landmark decision creating a constitutional right to privacy among spouses, reiterated the social importance of marriage:Marriage is a coming together better or worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association as noble a purpose as any involved in our prior decisions.3The law, therefore, takes very seriously, as it should. For all of its imperfections, serves a range of functions that make life easier and more enjoyable most people during at least some part of their lives. Thus qualified, is a fundamental good. legal and social values of marriage, however, does not answer the question of who gets to enjoy its benefits. current battle is over couples, but previously it was over race and patriarchy, all of which reduce to, in my view, essentialist arguments that society has worked hard to overcome.WHAT IS MARRIAGE? WHAT CONSTITUTES A FAMILY? WHO DECIDES?According to the 2010 census, there are 901,997 couples in the United States.4 These were people who identified as being spouses or unmarried partners. By March 2013, the number of legally married couples was 120,000.5 Formal recognition of such relationships by the state is important a variety of reasons which I will discuss below-not the least of which, notes journalist Frank Bruni, for older relatives who now [have] a traditional vocabulary and framework- vows, rings, cake-for understanding the relationships.6 These and related symbols are important and, in some sense, they mean more than the $360,000 tax bill that Edith Windsor was facing when she successfully challenged the federal Defense of Marriage Act.7 Money, of course, is important, but not all currency involves dollars and cents.In other words, the symbolism of is precisely what gay people are fighting over. It is about other people understanding them and that we sometimes have to use the terms that other people recognize in order them to recognize us. Such people can be important, such as relatives who are trying to make sense of our lives, who love us and want to support us, but do not have a way to process our decisions. Or it can be strangers who interact with us as citizens through daily social intercourse. Simply, adopting the symbols of the dominant society becomes a useful way translating between different lived experiences. overall effect of such symbolic exchange can be a notable change in consciousness. As activist Arnie Kantrowitz has noted, The right to choose is the ultimate normalization of relations between gay and non-gay society.8 Such normalization is an end to which I hope will occur when the Supreme Court rules in June that the U.S. Constitution, in fact, guarantees Americans the right to enter into marriages.9In order readers to understand the importance of equality our society, I need to address the question: What is marriage? …