Over forty years ago the Supreme Court in Loving v. Virginia struck down a law that banned marriage if the bride and groom were not of the same race. The death last week of Mildred Loving, the aptly named bride in that case, reminds us of how far we’ve come, and how far we have to go. Prejudice remains embedded in marriage laws that ban same sex marriage in every state except Massachusetts.
It’s easy to envision a time in the not too distant future when people everywhere view bans on same sex marriage with disgust equivalent to how we now regard bans on interracial marriage. It seems incredible to us today that any two people could be prohibited from marrying because they are of different races. Yet it remains widely accepted to prohibit two people from marrying because of their sex.
The harm that bans on marriage cause to individual families is obvious. A wide range of necessary legal protections and social and economic benefits are denied families who cannot access marriage, including: health care benefits, paid care taking leave, parental rights, estate planning and other lifetime benefits, to name a few. The intangible status that marriage conveys -- those rituals and rites that emanate from marriage -- is even harder to quantify.
What is less recognized is that restricting the institution of marriage to opposite-sex couples only perpetuates sex stereotypes about the “proper roles” of men and women within marriage. In denying same-sex couples the right to marry, courts nationwide have relied on outdated sex stereotypes about gender roles within marriage, and particularly foster misconceptions about parenthood. The “norm” is strictly defined as every child having a mother and a father, and implicit in this assumption is the notion that mothers and fathers necessarily fill distinct and separate roles. Mom stays home and teaches care giving; dad goes to work and teaches baseball on weekends.
The conservatives who mount the most vigorous
attacks on same-sex marriage continue to embrace gender-specific parenting roles. They often hark back to a fictitious time of Ozzie and Harriet, and Ward and June, invoking such stereotypes as real life role models. Focus on the Family’s James Dobson is clear in his preference: “I don't believe any arrangement for children can compete with an intact family where the mother raises her kids and the father is also very involved in their lives.”
Although courts may not be as blatant in their parental stereotyping when they uphold bans on same sex marriage, it is clear that preconceived notions around parental roles are at the heart of much opposition to same sex marriage. For example, New York’s highest court lacked scientific evidence about the benefits to children when parents conform to gender stereotypes, yet noted that “[i]intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006). The court’s "intuition" assumes that having one male and
one female parent demonstrates to children what men as a group and women as
a group are like; it ignores the individual differences that do not align with gender stereotypes. While each sex possesses its own set of defining characteristics, there is considerable variation and overlap of characteristics between men and women. Women can, and do, teach baseball; men can, and do, demonstrate care giving.
State statutes validating marriage only between a male and a female expressly discriminate on the basis of sex. A woman who wants to marry her (female) partner is denied this privilege simply because she is a woman. A man in her place would be free to marry any woman, even one he had never met before. Similarly a man who is denied marriage to another man faces discrimination on the basis of his sex. Many states already reject such discrimination in parenting and do allow same sex parents to adopt or foster children. Yet these same parents are prevented from marrying each another simply because of their sex.
State level challenges to bans on same sex marriage are now pending in Iowa, California, and Connecticut. (With assistance from the law firm of Irell and Manella, Legal Momentum has submitted amicus briefs in the cases in Iowa and California, urging the courts to recognize the illegal gender stereotyping such bans perpetuate.)
That such stereotypes and homophobia remain ingrained in the law is shameful. Forty years later our courts still have a lot to learn from Loving. It is time to reject the outdated stereotypes about same sex marriage and to genuinely recognize that families come in all shapes and sizes and colors.