On June 27, 2015, the Supreme Court of the United States of America held, “The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”[1] Writing on behalf of the majority decision in the case of Obgerfell V Hodges, Justice Kennedy prosaically begins, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”[2] The liberty to express one’s own identity is inaugurated by removing the sovereign’s limit upon the nature of marriage as a contract between a man and a woman.
The Supreme Court decision is being celebrated as the equal recognition of love under the law. The decision reflects the creation of “same-sex” as a legal category. The category subsumes lesbian, gay, bisexual, and transgender people under an ominous term “same-sex.” The formation of this category gestures toward two kinds of family formations: cross-sex relations (heterosexual), where in a man and a woman perform differing gender roles (such as that of a mother or father), and same-sex relations (homosexual), wherein a man and a man, or a woman and a woman perform similar gender roles (such as that of father, and father). The formation of same-sex as a legal category therefore tells us more about gender regulation in society than about sexuality.
The right to (gay) marriage appears through subjecting bodies to normative gender regulations. The category “same-sex” does not challenge the sex/gender binary, which forms the core of heteropatriarchal gender relations. In fact, the judgment creates newer legal standards for gender regulation in society by reinstating the relation between sex as a naturally created binary (as in instituted through nature), and gender as a social construct, which is derived from sex binaries. While speaking about sexuality and same-sex marriage we need to be critical about the reiteration of the sex/gender binary. The man/woman sex binary does not work while discussing Hijra/Kothi/Jenana communities; neither does it work while discussing transgender rights. Transgender/Hijra/Kothi/Jenana organizers have brought forth the question of gender binaries and are challenging gender binary as fundamental to the operation of social order.
Further, Justice Kennedy reiterates the role played by marriage in maintaining social order. In his majority opinion, Kennedy refuted the argument brought forth by the opponents that same-sex marriage is an insult to values of traditional marriage. Kennedy opined that same-sex couples uphold all the traditional values of marriage. One must ask the important question, as to what constitutes the traditional values of marriage? Is it merely an expression of commitment? Feminist activists have a long history of organizing against patriarchal oppression of women within marriage as a traditional institution. Gender-role expectations, dowry weddings, the expectations related to performing the roles of a wife and mother have all been championed as traditional values of marriage. How will same-sex couples help redefine marriage and gender roles today? These are vital questions, which need to be raised as we (the global LGBT and feminist community) celebrate the US Supreme Court decision.
The Supreme Court decision sought to uphold the 14th Amendment of the US Constitution, deeming that same-sex relations require equal protection under the law. The appearance of the rights-bearing same-sex subject is marked through the receding of legal limits placed upon an individual. The removal of a legal limit upon the nature of marriage while upholding the equal rights of those in same-sex relationships signifies a vexed relationship between the law and individual liberty. Recognition of the “same-sex” subject from the state comes in the form of upholding freedom of the individual from excessive state regulation. The removal of limits placed upon individual freedom comes to signify American constitutional liberalism. However, the removal of limits rather than the instituting of positive limits (such as anti-discriminatory provisions) signify a morphed version of liberalism. In Justice Kennedy’s version of the American promise of freedom, the liberty of an individual from state regulation is vital, and takes precedence over the government’s ability to place limits upon individual conduct. The individual is assumed to be (as well as encouraged to be) a subject of interest, capable of conducting one’s (intimate) behaviours responsibly in order to maximize one’s interest.[3] Same-sex marriage promises economic security in exchange for personal responsibility. The individual is deserving of liberty since the regulatory functions of the state have now become internal to the subject of interest. The moment marks the folding of love and marriage within an economic arrangement between two individuals (after all, gay marriage promises over 1100 economic benefits). The relationship between government and the individual is marked through freedom of the individual from government regulation. Freedom for the individual arrives with individual responsibility.
In an unequivocal support of the Supreme Court decision, David Boaz from the CATO institute (a libertarian think-tank) writes that the decision is a victory not only for gay rights but also for libertarian politics[4]. Boaz argues, that the decision provides individuals freedom from coercive government regulation. Freedom from regulation (rather than the government providing rights and benefits) is the mantra of neoliberal policies. The shift from imagining the government as a care provider, and upholder of constitutional rights to a limited government, which works to uphold free-market competition, is the hallmark of global neoliberalism. The Supreme Court decision on same-sex marriage classically contributes to the libertarian shifts within American liberalism by upholding freedom from government regulation. Boaz repeats the words of noted economist F.A. Hayek “private practice among adults, however abhorrent it may be to the majority, is not a proper subject for coercive action for a state whose object is to minimize coercion” (Hayek, 1960; 212)[5]
Hayek was an Austrian Economist who was a major proponent of free-market competition, and argued for the removal of any restrictions on individual interests. The individual in Hayek’s opinion is a free-market entrepreneur forming social relations, which benefitted his/her economic interest. The Supreme Court judgment tells us less about sexuality rights, and more about the slippage between constitutional liberalism and libertarianism. In a word, the fight for equal rights for all sexual identities takes us closer to global neoliberalism than to a promise of equality and redistributive justice for all.
It remains to be seen how the decision will be taken up globally. Perhaps the US Supreme Court decision will hold cadence for juridical purposes in other countries. However, the judgment holds symbolic value within the global LGBT activist community.[6] One wonders what such symbolic value gestures? What kinds of relationship between sexuality rights and neoliberal capitalism are being ushered through affective celebration of love and marriage? These are important questions to be discussed as we continue our dialogs about sexuality politics around kitchen tables and street protests.
[1]United States Supreme Court decision appears at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
Accessed on 25/07/2015.
[2]A defense of Justice Kennedy’s prosaic text appears on SCOTUS Blog by Michael C. Dorf (Professor of Law, Yale University). Appears at http://www.scotusblog.com/2015/06/symposium-in-defense-of-justice-kennedys-soaring-language/ accessed on 25/07/2015
[3]In his decision Justice Kennedy (joined by four other Justices) opined that the recognition of same-sex couples does not devalue marriage, since same-sex couples have shown responsibility and commitment toward upholding values of marriage as a contract between two individuals. Further, according to the majority opinion, marriage functions as a corner stone of social order. The nature and function of marriage has shifted over time. The state ought to guarantee the rights of same-sex couples to enjoy their intimacy in private. The right to same-sex marriage comes entangled with personal responsibility, maintaining social order, and relegates intimacy as a private matter. The private nature of intimacy requires the retrenchment of the regulatory functions of the state. The original judgment appears at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf accessed on 07/25/2015.
[4]David Boaz’s blog appears at http://www.cato.org/blog/libertarians-long-road-gay-rights accessed on 07/25/15
[5]Hayek. F.A. 1960. The Constitution of Liberty: The Definitive Edition. Chicago & London: University of Chicago Press.
[6]http://news.yahoo.com/us-same-sex-marriage-ruling-likely-impact-other-161856665.html
Pic Source
