Katharine K. Baker, The Stories of Marriage (May 13, 2009). Utah Journal of Law and Family Studies, 2009. Available at SSRN: http://ssrn.com/abstract=1404018
This article offers various different stories of marriage and argues that these stories matter more to the question of whether same sex couples are entitled to marry than does the legal theory. The article pays particularly close attention to one story of marriage told by opponents of SSM: the story of marriage as a gender factory. One of the primary purposes of marriage may be to make responsible, mature husbands and wives. Legal marriage, because of the way in which it facilitates and accommodates marital roles, encourages the production and reproduction of gender roles. Proponents of SSM can reject, as a normative matter, the story of marriage as a gender factory, but they cannot reject it as an empirical matter. The story of marriage as a gender factory finds robust support in the social science data on marriage. Married people, particularly married people with children, live much more gendered lives than unmarried people.
If the state sanctions marriage because both the state and the individuals involved benefit from marriage’s reproduction of gender, then neither fundamental rights nor equality claims to SSM will prove persuasive. Separate is often equal enough in the context of gender and private biases play a critical part in determining the extent to which the law must undercut gender norms.
Proponents of SSM can make strong claims to marriage under either a fundamental right or an equality theory, but to do that they need another story of marriage, one that makes sense of marital roles that are not necessarily gendered. Fundamental rights arguments require an articulation of (i) why marriage is more than just a bundle of legal rights and obligations (i.e., a Civil Union) and (ii) how it can be that something more without incorporating gender norms. Equality arguments require an explanation of why same sex couples are similarly situated to straight couples. If marriage’s role is to reify gender, they are not. In the last Part of this article, I tell a story of marriage pursuant to which same sex couples should be entitled to marry under either a fundamental rights or an equality theory, but it is a story of marriage as restrictive and interdependent in a way that many may find disquieting.
Related:
“Rorty, Pragmatism, and Gaylaw: A Eulogy, a Celebration, and a Triumph”
