As the nation prepares for next week’s historic Supreme Court hearings on marriage equality, it is important to note that women will be disproportionately affected by whatever decisions get made. That’s because female couples account for roughly two-thirds of existing legal same-sex marriages. This underreported fact is highlighted in an amicus (friend of the court) brief submitted last month by the Feminist Majority Foundation (FMF, publisher of Ms.) and the National Organization for Women (NOW) in support of abolishing California’s marriage ban, Proposition 8.
The brief cites research indicating that in states with some type of formal recognition of same-sex marriage, legally married lesbians outnumber married gay males almost two to one. In California, 65 percent of “legally registered same-sex couples” are female pairs.
Marriage equality is intrinsically bound up with feminist goals (see my earlier pieces, here and here, that make this point). Aside from the statistics on the lesbian marriage majority, consider the argument made by marriage equality opponents about “responsible procreation“–the absurd idea that allowing lesbians and gay men to marry will increase the number of children born out of wedlock–and the historical power imbalances within marriage that have adversely affected women.
As the FMF/NOW brief points out, significant advances in women’s rights have been hard-earned and of recent vintage: “The struggle for equal protection under the laws for women is not ancient history.” The fundamental rights to vote, to have sexual privacy, to choose whether or not to bear children and to receive equal protection under the law should not be subjected to the “whims of the voting majority.”
Because Proposition 8 was passed as a ballot initiative, NOW and FMF connect the precedent set by the California same-sex marriage ban to more broad infringements on the right to privacy:
Real threats to this fundamental right already exist, including threats to a woman’s right to choose to have an abortion. Thus, for example, even though the California Constitution and the United States Constitution guarantee women an inalienable right to privacy, religious lobbies have attempted to circumscribe this right by using the initiative process to make it more difficult for women to access abortion services. The votes on these measures are consistently close enough to raise concern that the fundamental rights upon which women depend may be in jeopardy.
In making the case against Proposition 8, the brief affirms the main arguments made by the plaintiffs in the case–that the marriage ban violates equal protection under the law and due process. Rather than repeating those constitutional arguments, the brief calls attention to an additional constitutional problem that ought to be taken seriously in the Supreme Court hearing:
Not only does Proposition 8 have no legitimate purpose, as determined by the Ninth Circuit Court of Appeals, but it has an affirmatively illegitimate purpose under both California and federal law–taking a side in a religious debate [emphasis in original].
During the Proposition 8 trial back in early 2010, the marriage equality opponents sought to distance themselves from the religious focus of the campaign they had waged, thus providing some rational basis for the constitutional amendment and distancing themselves from charges of bigotry and intolerance. But the FMF/NOW brief notes that religious organizations provided much of the funding for the Proposition 8 campaign, and that “Mormons provided between 80 and 90 percent of the volunteers.” As a result of this strong religious presence, “religious themes and references dominated the campaign for Proposition 8.” One source cited in the brief points to the campaign’s “frequent invocation of religious beliefs not only to oppose same sex-marriage but to condemn homosexuality as well.”
In the brief, a line is drawn in the sand that’s significant not just for same-sex marriage rights but civil rights in general:
Religious groups are free to continue to engage in discourse over issues of public importance; they are not, however, entitled to have the State’s imprimatur on the endorsement of their religious beliefs.
In other words, the government should not choose sides in questions of religious morality.
The Proposition 8 case will be heard on March 26. The next day the court will take up the Defense of Marriage Act (DOMA). It’s worth noting that, as a result of DOMA, legally married lesbians and gay men are denied federal benefits and viewed by the state as “legal strangers.” Since we now know that women make up the majority of legally married same-sex couples, then we should also recognize that the additional tax burden and benefit restrictions by DOMA affect women in disproportionate numbers. Combined with women’s lower earning power, this federal discrimination just adds another layer of insult to the injury of unequal rights.
Meanwhile, earlier this week another prominent feminist, Hillary Clinton, came out in favor of marriage equality :
LGBT Americans are our colleagues, our teachers, our soldiers, our friends, our loved ones, and they are full and equal citizens who deserve the rights of citizenship. That includes marriage. … That’s why I support marriage for lesbian and gay couples. I support it personally and as a matter of policy and law.
If the Supreme Court upholds the U.S. Constitution, then marriage equality will prevail–a victory for civil rights and a cause for feminist celebration.
Audrey Bilger is co-editor of the anthology Here Come the Brides: Reflections on Lesbian Love and Marriage.