There are many important implications to the California marriage ruling, including the court’s continued conflation of the “right to marry” with the “the right of intimate association” and “the freedom to pursue consensual family relationships,” along with the creation of sexual orientation as a suspect classification without fortifying sexual orientation as a natural, immutable condition. I suspect that several, more qualified, feminist and queer legal scholars will carefully sort out these implications in terms of their impact on families of choice as well as identity politics.
My particular concern is with the implications of this decision in terms of the function of marriage in a neo-liberal context. Having spent a couple of years doing ethnographic work with marriage equality activists and analyzing state court decisions, legislative hearings, and policy briefs regarding same-sex marriage, I have amassed a great deal of evidence to confidently argue that the constitutional “freedom to marry” is a neo-liberal wolf in culturally progressive sheep’s clothing.
Before you write this off as a party-pooping, Debbie Downer rant by some over-educated queer who is never really satisfied with small steps toward intimate freedom, I urge you to keep reading so you can find answers to the following questions: (1) How could it be that Chief Justice Ronald M. George would indirectly cite Friedrich Hayek (for those of you that don’t know—he is one of our neo-liberal forefathers) as a scientific authority on the social significance of marriage? (2) What do the rights and freedoms of neo-liberal marriage have to do with the systematic (and recently declared unlawful) removal of over 400 children and their mothers from the FLDS Texas ranch?
The connection between neo-liberalism and the “right to marry” may look like a farfetched stretch of the academic imagination. The dearth of good social scientific evidence for this point is, at least in part, a result of how sociologists, mainstream gay activists, the media, and countless others have framed the fight for “marriage equality” as one battle in the culture wars or a matter of religion, rather than an essential prerequisite to the economization of social life that is characteristic of neo-liberalism. In this way, the California decision is actually typical of other recent state court cases considering the state’s interest in marriage, like New York, Massachusetts, and New Jersey, for example. In his attempt to define how society is uniquely “served by the institution of civil marriage,” Chief Justice George does not have to dig deep into the annals of court history to find polemic rationalizations for marriage as the “foundation of family and of society, without which there would be neither civilization nor progress.”
What makes marriage the preferred foundation of family and society? What evidence do we have that marriage is the key to civilization and progress? George outlines the state and societies’ interest in marriage (yes, he sees the state and society as one in the same) to form a stable setting for childrearing, emotional and financial stability—this is a familiar story. More specifically though, according to George’s interpretation, “the legal obligations of support that are an integral part of the marital and family relationships relieve society of the obligation of caring for individuals who may become incapacitated or who are otherwise unable to support themselves.” In this formulation, marriage is not just an expression of intimate desires, or a religious sacrament; it is also a care structure—one that places the responsibility for support on individual couples rather than society. As feminist theorists have long pointed out, this leaves the responsibilities for care to the unpaid domestic sphere, while relieving the state and market of any domestic accountability.
It is with this privatized economic obligation for care that neo-liberals find an affinity. This affinity is not simply hypothetical; Justice George explicitly bases his interpretation of this unique role of marriage on a law review article written twenty-five years ago by Bruce Hafen, previous president of Ricks College and former dean of J. Reuben Clark Law School at BYU. In his fascinating consideration of the necessity of marriage, Hafen cites Paul Johnson’s “Family as an Emblem of Freedom” to make the following pronouncement:
The significant place of marriage in the democratic political structure reflects the extent to which marriage has become “an enormously important element in the rise of stable political systems and dynamic economies… As Professor Hayek has rightly pointed out, ‘the rise of the West is due in great part to its ability to define the law with certitude, and to uphold it against all comers – for legal certainty is the basis of investment and capital formation. At the heart of any stable law of property is a clear and universal legal doctrine of marriage, legitimacy and inheritance.'”
Professor Freideric Hayek makes the role of civil marriage in the neo-liberal context very clear: it exists to stabilize and extend the reach of capital. Romantic, is it not? Imagine how this opinion would have been different had Justice George cited Nancy Polikoff’s 1993 article, “We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not ‘Dismantle the Legal Structure of Gender in Every Marriage'” published in the Virginia Law Review. Rather than de-institutionalizing marriage by disconnecting it from social insurance, Chief Justice George repudiates the power of the state by reminding us that even if the abolition of marriage seemed like a good way to “serve the interests of society…the right to marry is a basic, constitutionally protected civil right…protected from the abrogation or elimination by the state.”
While Ellen is busy asking John McCain to walk her down the aisle, we are witnessing one of the most egregious and widespread violations of “the right of intimate association” in recent times. Consider, for example, the 400+ children and their mothers forcefully removed from the Texas FLDS ranch on the word of an anonymous tip from an, as to date, unidentified caller. Once placed in “protective” custody, the Texas Department of Family Protective Services (DFPS) required FLDS women (presumed guilty by virtue of their address) to sign a “service plan” that would outline the steps they would need to take in order to reunite with their children. This document includes the usual state surveillance and intrusion measures, including a provision that requires FLDS women to attend vocational training. It is not my intention to glorify polygamy, nor presume the family form inherently guilty of sexual abuse without evidence. Instead, I want to draw attention to the action of the Texas state as a not-so-subtle attempt to bring the FLDS in line with the “dual earner” household standard of post- family wage America. Sounds like welfare to work; sounds like neo-liberal marriage.
The “freedom to marry” seems to resonate; it feels appealing, innocent, and rewarding. After all, what could be so bad about extending freedoms at a time when policy makers frequently prioritize safety and protection over civil liberties? We do not have to look too far beyond Texas to see the neoliberal downsizing, cost benefit analysis and privatization behind this innocent veneer.