Response to Martha Nussbaum
I find much to agree with in Professor Martha Nussbaum‘s elegant and lucid Essay, “A Right to Marry?” However, I will not begin by responding to it directly, but will instead start my analysis by taking a step back from the debate. Many observers believe that the politics of the gay marriage issue in the United States has just passed a tipping point due to successful gains in the recognition of equal rights for gay couples. The recognition of gay marriage in Connecticut, Vermont, Iowa, and New York may signal a trend, which some believe is irreversible. Some high-level Republicans have given support to this view by defecting from the orthodoxy of marital absolutism that has been so central to their party‘s politics in recent years. These advances lead many to believe that the position in favor of same-sex marriage advocated by Professor Nussbaum will likely prevail.
Is this too optimistic? Obviously there are long struggles ahead, particularly as long as the Defense of Marriage Act (DOMA) is on the books. Because so many states have amended their constitutions to prohibit gay marriage, overturning DOMA will require a vast political change. Same-sex marriage may be an issue that maps regional differences for generations to come. We might end up with a protracted crisis of federalism, in which the same-sex marriage states and the states that are constitutionally bound against gay marriage appear shaded in large blocs on the map. This situation would form new routes for gay migration. Even in the most “gay-friendly” states, marriage will continue to be something of a tease for gay people as long as it does not entail the significant entitlements that are available only at the federal level, including taxation benefits and foreign sponsorship rights for immigrant spouses. Given the generational trends in the polling data, it is possible to argue that repeal of DOMA looks inevitable in the long term, but that might be a very long term indeed.
In the meantime, we must consider what the debate should look like. The danger is that an emergent generational consensus about same-sex marriage—while a massive repudiation of the public homophobia that dominated the twentieth century—will be predicated on a naturalization of marriage as an institution, entailed in the phrase “the right to marry” and based on a naive folk theory of marriage as expressive. If a consensus of this kind emerges, it will end the opportunity to reexamine the regulatory work of marriage and demand some justification for its existence.