The May 2008 California Supreme Court decision effectively adds a second state to the (short) list of states that do not prohibit marriage for consenting adults of the same gender. The ruling reflects the result of many years of social change that has pressured our country to live up to its ideals of freedom, equality, and justice for all. The Civil Rights Movement was the most visible event in recent history, as many radical changes occurred in a relatively short period of time. At that time, we effectively identified how race, ethnicity, and gender issues are rife with inequality and thus problematic for our country.
Social change does not move quickly or steadily. In stops and starts, forward towards new practices and backward to known traditions, society resists change at every step. Some refer to this dynamic as a dialectic process in which whatever exists creates its own contradictions, creating struggles which eventually “resolve” or morph into a new reality. Marx described the life span of capitalism as a dialectic process, for example.
While societies do not change quickly, they are always changing. Things today are certainly not the same as they were fifty years ago, or even five years ago. With technological changes and resource pressures, the way we live our lives has changed and will continue to change. Younger generations grow up in altogether different circumstances than previous generations thus their ways of thinking and expressing themselves sets them apart from others.
With regard to marriage laws, it is clear that we have seen some changes and we’ll continue to do so.
Marriage has long been a relationship defined by property and resources. Marriage based on love, emotional ties, and individual choice is a relatively recent social invention. That notwithstanding, marriage still is a legal contract that involves ownership and property rights. At the same time marriage effectively gives people license to have sex – although that, too, is tied to ownership and property since our societal norms of marital sex assume subsequent procreation and offspring – with appropriate naming and rights of inheritance.
Our heterosexual norms are tied to male dominance – clearly seen when looking at marital laws. Historically, brides are women or property transferred from fathers to husbands. One look at a traditional marriage ceremony confirms this symbolism when the parents hand over the bride to the groom at the start of the ritual.
Since men marry women – and give them their name (identifying one’s property!) – the power relations are clearly defined. Men had not been able to marry other men (and women to marry women) because that would tamper with the power structure based on gender. Homophobia helps to maintain this structure since it makes people afraid of both the idea of and the people who may be participating in same-sex couplings.
Seen in this light, allowing same-sex marriage is progress towards gender equality.
American society’s marriage laws have always reflected its evolving attitudes toward race, ethnicity, sex/gender, and sexual orientation.
Prior to the civil rights era, anti-miscegenation laws outlawed marriage between white and non-white people thus protecting the property rights and inheritance patterns that kept the dominant group white and all other groups, well, not-white.
While the U.S. Supreme Court deemed those laws unconstitutional in the late 1960s, it took until 1999 for all fifty states to vote those laws off their books. After being sued by inter-racial couples having trouble getting the paperwork to legally wed, Alabama finally asked their voters in 1999 to weigh in on eliminating or keeping their state anti-miscegenation laws, even as the law had been unconstitutional for over thirty years. (It passed, 60/40.)
While most marriages are still endogamous – people still tend to marry people like themselves – in contemporary American society we have the right to marry whomever we choose no matter their ethnicity or racial identity—as long as they are they opposite sex ( unless you live in California or Massachusetts).
According to the U.S. Census Bureau, only two percent of marriage partnerships are inter-racial. This does vary by state and region, of course, but nationwide it is only two percent. In spite of the Supreme Court decision, most marriages are intra-racial.
This is all part of the inevitable social changes that come about since we live in a country with an elective affinity between love-based marriages and a strong belief in individual freedoms. We socialize people to grow up and fall in love, marry their sweetheart, and settle down to create a family. Those norms have long been informed by norms of heterosexuality and cultural heterogeneity although the latter is not as strong a norm as it once was.
When states make their marriage laws based on sex or gender definitions, they often complicate things further. For example, Texas defines their marriage laws on chromosomes, thus an XX female can marry an XY female because they do have the expected chromosomal pairing. One wonders if someone with X0 and other variations can marry in Texas at all!
Add to this transgender issues and we see that our culture has some distance to travel before we really do embrace equality and justice for all. It’s not just a matter of saying that people should be able to love whomever they want. It’s more a matter of equalizing our social categories and dismantling the privileges and barriers based on sex, gender, race, ethnicity, and sexual orientation.
From the 1960s U.S. Supreme Court to the 2008 California State Supreme Court decisions, the highest bodies in our legal system have so far demonstrated that we still do strive for these goals.