JURIST Guest Columnist Shannon Gilreath of Wake Forest University School of Law says that the current litigation strategy seeking marriage rights for same-sex couples only tinkers around the edges of heteronormative institutions when it should be seeking separate institutions that reject these gender role-dominated institutions…

JURIST recently reported that the American Civil Liberties Union (ACLU) was appealing a decision by a Montana district judge to dismiss a lawsuit by six same-sex couples seeking partnership benefits. What I find most interesting is that the plaintiffs in Donaldson and Guggenheim v. Montana are not seeking marriage, but rather partnership benefits that will entitle them to make the same sorts of family decisions about the medical care of partners, finances and inheritance that heterosexual married couples are able to make as a matter of form. For me, the plaintiffs’ strategy underscores the current split in the gay movement itself, with one side, the “gay rights” side, in pursuit of marriage at any and all costs. The other side, what I call the gay liberation side, is clinging to the principles of the early, incandescent years of our movement, when it was really a rebellion, of destroying gender as a category of analysis, of destabilizing the nuclear family unit, and of liberating sexuality. Since the Gay Activists Alliance split from the New York Gay Liberation Front in late 1969, those liberation principles have been steadily replaced with assimilationist policies that tell gay people that in order to be valuable we must look like, act like and behave like straight people.

Standard dictionary meaning for “equal” is “the same in amount, degree, value, or quality; equivalent; adequate, as, equal to the undertaking: used in compounds to denote balance, fairness, as equal-handed. Syn. Equivalent.” This is the definition of equal that gay rights activists have embraced, a purely formal definition through which equality means equivalence. Gay rights advocates have sought to establish gay as equivalent to straight in virtually every aspect, in the process valorizing heterosexuality by casting homosexuality as a mere reflection of its domestic wholesomeness — insisting to the hetero powerbrokers that we do all the things straight people do in domestic bliss: we share meals together, spend time with our families, and make love in the hetero-romantic image. These arguments were seen in amici briefs in Lawrence v. Texas. This method has been remarkably successful in, for example, enabling the US Supreme Court to recognize a right to sexual privacy for gays in that case, by transforming the actual relationship at issue, one of no-strings-attached encounters, into an enduring domestic union in the fictionalized hetero-model. It has also been remarkably successful in this country’s same-sex marriage advocacy in courts and legislatures, where plaintiffs have been carefully chosen and where, generally, all gay relationships look alike. These model relationships are long-term, presumably monogamous, and ubiquitously involve children, where children are offered up as proof that gay coupling is as valuable as straight coupling, a direct reply to that premier criticism of same-sex intimacy that it cannot result in procreation.

Without question, Lawrence is a major leap forward in the jurisprudence made by straight people that governs gay people’s lives, as are the marriage cases, which do vindicate gay people’s interests in access to all of the rewards attendant to settling down. I do not dismiss these gains, except to say that there are very few voices today that question the darker aspects of settling down, let alone settling, and that an alternative to this formalism — a substantive equality theory and litigation strategy that does not require gay people to bargain away their moral integrity — has barely been imagined, let alone tried. Certainly, few are now suggesting that we re-envision the way we value and reward relationships, sexual relationships in particular, in the ways that Claudia Card or Richard Mohr have urged.

Over the years, the center of gravity in our movement has shifted. Some of us have committed ourselves to equality in form and function, especially with regard to “love,” “romance” or “commitment.” We believe that if we are “equivalent” enough, then even they may come to value us. This is an investment in their equality. Others of us, myself included, hope for an equality that is also just, one in which gay people have not only access to certain institutional rewards, but also a say in defining the standards by which value is measured. Equality in relationships is not, for us, a sufficient goal when the ownership and gender-role polarization inherent in the heterosexual sexual model goes unexamined and unchallenged. Quite simply, equality is not enough for us if it means only the ability to be the same as the oppressor, equally as exploitative, as immoral. For us, all oppression is built on, patterned after, sustained by the paradigm of male over female domination that has defined the institution of marriage for thousands of years. Everything heterosexuality is, and everything it has done to us, is tied irrevocably to marriage and what it represents and to what has been accomplished through it. To recognize this is, of course, to understand that heterosexuals have invented sex itself, as we experience it, as well as the linguistic register with which we have to define ourselves in relation to it, let alone attempt to resist it. This gives a grim poignancy to Kristin Perry’s testimony in Perry v. Schwarzenegger that without the word “marriage” to describe her relationship to her partner of 10 years she lacked the ability to convey the importance of that relationship to the straight world around her. Surely, as Monique Wittig observed, the “discourses of heterosexuality” are totalizing.

It is appealing to believe that if gays get married then millennia of patriarchal/heteroarchal customs will somehow be reversed. There is no data to support this, however. What I am saying here is that “equality” within this model can only perpetuate the model itself, and can only leave space for a tinkering around the edges. Gay liberation never intended to tinker at the edges of straight supremacy, never intended to content itself with meager reforms to masculinized dominance, never accepted duality in the hetero-model as a given or as intrinsically valuable. Gay liberation aimed for radical transformation. What I find myself questioning, more and more, is why we gave in. This is to say nothing about the specificity of any particular relationship, gay or straight. People have always been able to work out more or less equalitarian relationships, one-on-one. Gay liberation has never been about exceptionality as progress; it has been, by contrast, about revolutionizing the structure, working from the ground up — about challenging heterosexuality and the institutional prerogatives derived from it, perhaps especially marriage. No inarticulable, abstract reform has accomplished this goal — has not and will not.

I believe that we, the gay movement, have missed an opportunity to alter the structure. Why have we not insisted on something of our own making, call it civil union, or domestic partnership, or what you will — something other than marriage that does not come with its patriarchal baggage. Certainly, we could question whether we should involve ourselves in the entirely irrational state-enforcement of fictionalized monogamous relationships and nuclear family units through a system of caste-based reward. But we live in a country that does not afford its citizens the most basic of human dignities, access to healthcare for example, and where such “privileges” are often conditioned on coupling in the heterosexual model. I want gay people to have health care too! The salient question for me is why, if we could get access to health care, to our loved ones in times of crisis, control over the distribution of our assets after we die, and so on, without acquiescing in an institution built for millennia on a foundation of male ownership of female bodies, would we not do it? I think we have missed a huge opportunity to say pointedly that we reject the heterosexual philosophy in favor of something better, as well as the opportunity to bring enlightened heterosexuals along with us into a world in which the omission of the intrinsic bondage of “honor and obey” is not merely the exception but the rule.

Litigating marriage is not about “partnership” rights and it is time we stop posturing as if it were. I do not pretend to know the sexual politics of the plaintiffs in Donaldson and Guggenheim v. Montana. I am on record as opposing the sexual politics of the ACLU in many respects, not the least of which is their insistence on formal equality only in matters of sexuality, or their blinkered defense of anti-gay speech, or their valorization of pornography as “speech.” But this is not to say they cannot get things right from time to time. All I am saying is that, taking the relief they are requesting at face value, I have a lot more respect for the Montana plaintiffs than for what is going on in California and the Ninth Circuit right now. Let us pursue the bundle of rights at stake in much same-sex partnership litigation if we must — because we need them to survive, to become stronger. But “marriage” is something different altogether, pursued aggressively to the exclusion of all else. This is what I think we should put aside, a posture we should abandon. We would all be better off if we returned to the truly revolutionary values of gay liberation, and perhaps also to separatism in the name of an equality that is substantive and just.

Shannon Gilreath is a Professor for the Interdisciplinary Study of Law and a Professor of Women’s and Gender Studies at Wake Forest University School of Law. Gilreath’s casebook Sexual Identity Law in Context: Cases and Materials is designed to put members of the LGBT community in a social context. His book, Sexual Politics: The Gay Person in America Today has been nominated for many prestigious awards such as the ALA Stonewall Prize for Non-Fiction and the Lambda Literary Foundation Award.

Suggested citation: Shannon Gilreath, Montana Case Shows Split in Gay Rights Movement, JURIST – Forum, Dec. 14, 2011, http://jurist.org/forum/2011/12/shannon-gilreath-gay-liberation.php.