There’s No Such Thing as Gay Marriage

There was a lot of name-calling in the 9th Circuit Court of Appeals yesterday when Proposition 8 came up for review. Much of the discussion revolved around names–specifically which unions get to be called “marriage” and which are deemed undeserving of that privileged term.

When Theodore Olson took the stand to oppose the marriage ban, Judge Stephen Reinhardt asked a blunt question: “Are you suggesting then that gay marriage is required by the constitution of the United States?” Olson replied, “What is required by the constitution of the United States is the fundamental right of its citizens to marry.” When pressed again by the Judge, who asked if there is “a constitutional right to gay marriage,” Olson took a strong stand on the issue of naming:

I would not call it, Judge Reinhardt, ‘gay marriage,’ or I wouldn’t call it single-sex marriage any more than the Supreme Court of the United States called it interracial marriage.

Olson’s point here is identical to one made by Judge Walker in his landmark decision overturning Proposition 8 as unconstitutional “under any standard of review.”

[The lesbian and gay couples in this case] do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy–namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

These issues go beyond mere wordplay. Charles Cooper, in defense of Proposition 8, stated emphatically, regarding the term marriage, that “The word is the institution. If you redefine the word, you change the institution.” Given that California permits same-sex couples to form domestic partnerships, to raise and adopt children and to enjoy most of the other benefits that accompany the institution of marriage, the question of names and definitions goes to the heart of the case.

Judge Michael Hawkins pointedly asked attorney Therese Stewart, speaking against Proposition 8, “Are we talking about a label here?” Stewart replied,

We are talking about a label, your honor, but it’s a very important label, it does have great meaning.

Both Olson and Stewart contended that withholding the name of marriage from same-sex couples strongly implies that lesbians and gay men will taint the institution, that’s there’s something wrong with them, and that they are undeserving of a right that has 14 times been deemed by the Supreme Court, according to Olson, as “fundamental.”

Cooper argued that  marriage must be restricted to opposite-sex couples because of the state’s interest in regulating procreation. Central to the definition itself, he contends, is the potential of heterosexual couples to bear children and to ensure the survival of the human race. Never mind that straight couples need not be fertile or even express an interest in having children in order to obtain a marriage license. Cooper dismissed the idea that the state might issue fertility tests before sanctioning marriages as “Orwellian,” but didn’t indicate what protections are in place to keep us from sliding down this slippery slope. If procreation is so essential to the institution, then what’s to keep the government from requiring straight couples to produce children in order to legitimize their marriages? Then again, what’s to keep it from taking away the right to procreate?

The right to marry, Olson asserted, is “an aspect of the right to liberty, privacy, association and identity.” In the Plaintiffs’ Response Brief for the 9th Circuit, he concluded:

What can the Supreme Court mean when it says that our Constitution “neither knows nor tolerates classes among citizens” if a majority can so stigmatize a small, visible and vulnerable minority and in the process cause such wrenching anguish? The American promise—and dream—of equality surely means at a minimum that the government, before ‘drawing a line around’ some segment of its citizenry and designating them unworthy of something as important and socially meaningful as the institution of marriage, must have a legitimate and factually tenable rationale for doing so.

In the appeal hearing, the defenders of Proposition 8 made arguments that were either tautological (marriage is defined as one man and one woman, period, that’s the definition, so same-sex couples don’t get to claim it) or irrational (marriage is always and only about the state’s interest in regulating procreation). They made no mention of the moral disapproval of lesbian and gay couples that was central to the campaign to pass the marriage ban. As the trial and appeal conclusively establish, however, Proposition 8 makes no sense unless you believe that lesbians and gay men are inferior to heterosexuals. Separate and unequal.

Marriage, as the Supreme Court defined it in a case cited by Olson, Griswold v. Connecticut, “is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”

It’s time to move beyond talking about gay (or straight) marriage; Proposition 8 is about a sacred notion called equality.

You can thank the Prop 8 plaintiffs for challenging the discriminatory law:

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Photo from Flickr user ProComKelly under license from Creative Commons 2.0


  1. natalie wilson says:

    "Proposition 8 is about a sacred notion called equality" Bravo!!!!!!!!!!! Great post, Audrey!

  2. thanks for the great post!! i'll never say 'gay marriage' again… its just marriage. period.

  3. Marriage is and has always been about MANY things….the way to bridge the male-female divide, a close personal relationship between 2 people who love each other, a man of making a man into a 'husband/father' and a woman into a 'wife/mother', a way for children to know their birth parents (ie their right they should have to know who fathered them with a lot of research showing it is very bad for children if they do not, sorry adoptees), a way of legitimizing heterosexual intercourse by giving it societal acceptance and control……etc etc.
    My problem is that genderless marriage would, unlike what Ms. Bilger asserts, take away many of those societal goods just to institute the definition of marriage as a close loving relationship between 2 consenting adults. Of course marriage is that, but a heckuva lot more! The government certainly has a rational basis in maximizing child welfare, fostering male-female bridge building and working to uphold an institution that society has always used to do just that, so much more than just a close personal relationship between 2 people!

    • I don't quite see where Ms. Bilger asserts anything of the sort. Where did she propose removing "societal goods just to institute the definition of marriage as a close loving relationship between 2 consenting adults?"

      Why would opening marriage to pairs of consenting adults curtail government's "rational basis in maximizing child welfare, fostering male-female bridge building and working to uphold an institution that society has always used to do just that?" How would marriage between same sex partners minimize child welfare, diminish male-female bridge building (?!) and work to knock down this institution?

      Jonathan's tired talking points again support, as inferred from Ms. Bilger's column, that the discriminatory work to prevent equal access to marriage between pairs of consenting adults lacks any rational basis.

      Perhaps Jonathan's time would be better spent working for adoptee and donor offspring rights to have access to information about their birth parents or sperm/egg donors.

  4. It is as clear as crystal any couple is free to choose wether or not to have children regardless of their sexual orientation. Plus, there is no proof that gays are unable to have a childs. What Judge Stephen Reinhardt is trying to say that if same sex couples are allowed to marry, it will change the attitude of others by making marrige an equal institution as well as accepting us to have equal rights. Moreover, marrige is one of the basic rights difined by constituion, which no single invidual should be denied. What is more something involving descrimination cannot be based on values. So, what the people who are in favour of Proposition 8 seem to misenderstand what traditions are and they are also trying to use them to disguise their true goals.

  5. Ms. Lee says:

    Again, there was no mention of sex/gender, except in Jonathan’s comment on “genderless marriage.” Just like bans on interracial marriage were discriminatory based on race, bans on same-sex marriage are discriminatory based on sex/gender. As Jonathan’s comment demonstrates, proponents of sex/gender limitations on civil marriage hold sexist assumptions, the way supporters of racial limitations on civil marriage maintain racist biases. Their disapproval isn’t just against same-sex or interracial couples, but against individuals who don’t fit sexist or racist biases or expectations.

    For laws that discriminate based on race to be constitutional, the state is supposed to demonstrate that the discrimination is necessary for a compelling state interest (“strict scrutiny”). Without the Equal Rights Amendment, a sex/gender-discriminatory law is considered constitutional as long as it serves an important state interest (“intermediate scrutiny”). Discrimination based on sexual orientation or behavior is even easier for the state to justify.

    Nonetheless, arguments that sex/gender limitations on civil marriage regulate procreation are fallacious. Furthermore, state procreation-promotion can be used to legalize polygamous marriage, which allows for more offspring than monogamous marriage. So, people who argue for explicitly redefining civil marriage as one-man, one-woman based on government procreation-promotion are shooting themselves in the foot. Procreation regulation would be a non-contradictory justification of such redefinition. As Bilger pointed out, Americans don’t have protections against such regulations–other than a right to privacy, which proponents of bans on abortion or contraceptives argue is not a constitutional right. See history of state-sponsored eugenics and compulsory sterilization in the US (


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