Pretend, for a moment, that the Supreme Court decides to make huge, sweeping decisions regarding the same-sex marriage cases that they heard earlier this week. They effectively make same-sex marriage completely legal across the entirety of United States. That almost certainly isn’t what’s going to happen, but let’s pretend it does. Let’s say they strike down Section 3 of DOMA, forcing the federal government to recognize same-sex marriages in states that have legalized it. Also, they make a ruling on California’s Prop. 8 that allows it to be used to challenge anti-same-sex marriage laws in other states. Basically, we’re pretending they make same-sex marriage legal everywhere.
Now, let’s pretend that I and my hypothetical girlfriend live in North Carolina (which doesn’t issue same-sex marriage licences), but we go to a state that does and get married. Now that marriage would have to be recognized by the state of North Carolina and the U.S. government. I will have access to all 1,100+ federal rights and privileges that come with being married. Plus, I’ll have access to whatever state rights and privileges that come with being married in North Carolina. Yay, equality! Except, wait, North Carolina doesn’t have any laws which prohibit employment discrimination against LGBT people. My employer would be forced to recognize my spouse for the purposes of insurance and taxes (because my marriage is recognized by the state), and yet I could be fired from my job for having a same-sex spouse. “I recognize you are married to a woman,” says my employer. “Now I’m going to fire you because you are married to a woman.”
It gets worse. Let’s say that because I am fired from my job, my hypothetical wife and I can no longer afford our mortgage. So we have to start renting an apartment. My wife and I find a lovely little place which we both absolutely adore, and we decide to sign a contract to rent it. Except, wait, turns out the landlord has decided s/he won’t rent to same-sex couples. North Carolina has no law banning housing discrimination based on sexual orientation. “I recognize that you are married,” my hypothetical landlord says, “but I won’t allow a gay married couple to live in my building.”
But wait, it gets even worse. Let’s say we find an apartment eventually, and I even find another job. A year passes; it’s our anniversary. My wife and I we treat ourselves to a meal at a nice restaurant. We hold hands across the table. We kiss. We share a dessert. It’s straight out of a romantic comedy. The term “lovey-dovey” springs to mind. Another patron decides to complain to the manager about our public display of affection. We get kicked out of the restaurant; there’s no law in North Carolina to prevent the manager from refusing service based on sexual orientation.
The complaining patron follows us outside, calling us “dykes” and “abominations.” He tells us he “knows what we need,” and then proceeds to attempt to sexually assault my wife. We’ll go with a best case scenario here, where we fight him off and run away. We go to the police, and they do nothing. The hate crimes laws in North Carolina don’t include sexual orientation. Often, hate crimes against LGBT individuals are not investigated, let alone prosecuted. “I’m very sorry you and your wife were assaulted,” the police officer says, “but there isn’t really a lot we can do.”
So, I’ve been fired, we’ve been evicted, and now we’ve been assaulted. But hey, we’re married.
Let me say that I’m all for marriage equality. I really am. However, I am also really worried at how the fight for marriage equality is being presented as the end all, be all of LGBT rights. I’ve actually read articles and comments that say that marriage equality will mean “the end of second class citizenship” in the Untied States. So much of the commentary about this issue has basically been suggesting that if gay and lesbian people can get married, they won’t be discriminated against any longer. It’s not as though allowing same-sex marriage prohibits homophobic people from discriminating against married same-sex couples.
Admittedly federal law does curb some of the discriminatory practices I mentioned. The Matthew Shepard Act allows the federal government to step in when local government fails to investigate a hate crime. The problem with that, of course, is that first the federal government has to be made aware that a hate crime has been committed. In the example above, if the local police ignore it, and if I and my hypothetical wife don’t bring it to the attention of the ACLU, or whatever, that crime remains invisible.
The Obama administration has taken steps to protect LGBT individuals in federal jobs from discrimination, but there isn’t much his administration can do about state or local public service jobs or private sector employment. Also, I chose North Carolina as an example because it is a state with some of the weakest anti-discrimination laws on the books. Many other states do protect against employment discrimination, housing discrimination, etc. based on sexual orientation, though not as many as you might think. Framing the fight for same-sex marriage as the big, final battle for LGBT rights is ridiculous.
Actually, not only is it ridiculous, it’s dangerous. For one thing, framing it that way ignores the various ways in which LGB people can still be discriminated against. More than that, though, it leaves trans* and intersex rights in the wind. At the same time that the Supreme Court was hearing the case for same-sex marriage, Arizona pushed forward a bill that discriminates against trans* individuals who do not use the bathroom of their assigned birth sex. In 2007, the Human Rights Campaign voiced its support for a federal Employment Non-Discrimination Act that provided protection based on sexual orientation, but not for gender identity. It didn’t pass, and they have since changed their position, but the fact remains they were willing to throw trans* rights under the bus. The landmark repealing of Don’t Ask Don’t Tell totally failed to include trans* people. Even if marriage equality somehow meant that discrimination against LGB people became illegal, it does nothing to address discrimination against trans* people.
There are some pieces of legislation that protect trans* people and include gender identity as a protected class. The Matthew Shepard Act was the first piece to do so when it passed in 2009. The Obama administration has begun including gender identity in the list of classes which are protected from discrimination in federal jobs. It isn’t all bad. Progress is being made.
So, okay: the times they are a-changing, and acceptance it is a-growing. But what kind of acceptance, exactly? The word for it is: assimilation. Gay and lesbian people are being assimilated into heteronormativity, creating a homonormativity, if you will. If you look like you belong to the mainstream, and you adhere to the normative behaviours of the mainstream, maybe the mainstream will even accept you as one of them.
Let’s take a look at the two pieces of legislation that have been the focus of mainstream LGBT rights in the past few years. Repealing Don’t Ask Don’t Tell was basically about making sure “red blooded” patriotic Americans who wanted to fight for their country weren’t banned from doing so. And repealing the Defence of Marriage Act is about making sure that everyone has access to the normative, conservative institution of monogamous marriage. Hey gay people, you can be conservative traditionalists too!
And therein lies the rub; marriage is traditional. More and more conservatives have been voicing support for same-sex marriage, and their logic is that marriage is a conservative institution. They argue it is the bedrock of our society, and the more people who are able to enter that institution, the stronger that institution will be. And they’re right. Marriage equality strengthens the institution of monogamous marriage, by making it the most acceptable type of relationship for even more Americans. What it doesn’t do is challenge the fact that our society has privileged monogamous marriage above any other kind of relationship. Same-sex marriage doesn’t challenge the way that our society is set up so that the only way to equality is to look and behave just like everyone else; it reinforces it.
A friend and I were discussing this issue a few months ago. We were talking about the mantra among many mainstream LGBT individuals of, “We’re all the same. We’re just like you. Accept us.” She was angry that was the direction the fight was taking. “I’m not just like straight people. I’m queer. I’m different,” she said. “I don’t want to be ‘tolerated.’ People should accept me on my own terms.” And this is true, I thought. We aren’t all the same. Rather, the reality is the exact opposite: we are all different.
To be clear, no one should be banned from fully assimilating into the mainstream if they so choose, but also, no one should be forced to do so in order to be recognized and protected by the government. Assimilation should not be a prerequisite for civil rights.
This was also published at Good Men Project.