The headline from today’s San Francisco Chronicle says it all: “Unconstitutional: Same-sex marriage backers rejoice as federal judge strikes down Prop. 8”. I’ve been reading over parts of the judge’s ruling, available as a PDF file on the Web site of the San Jose Mercury News. I was particularly struck by the judge’s reasoning that by outlawing same-sex marriage, Prop. 8 discriminates, not only on the basis of sexual orientation, but also on the basis of gender:
Plaintiffs challenge Proposition 8 as violating the Equal Protection Clause [of the 14th amendment] because Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry’s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian. [p. 119]
The judge also pointed out that, in the past, marriage had been a “male-dominated institution.” Then as gender equality became the law of the land, marriage had to change such that both partners became equals:
The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32. Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality. [p. 112]
In short, from a legal point of view, the feminist revolution helped pave the way for same-sex marriage, by doing away with the notion that marriage required women to be subservient to men. (Remember that as late as the 1960s, a woman could not have a credit card in her own name; it had to be in the name of her husband.) This also implies that we should be wary of what opponents of same-sex marriage call “traditional marriage”; in fact, earlier in the ruling, the judge writes, “Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.” [p. 87]
Thus the judge states forcefully what many of us knew already: that opposition to same-sex marriage can be based in part on old-fashioned notions of requiring gender inequality within marriage. He drives this home towards the end of the ruling:
California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. FF 32. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.
The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender. See FF 32, 57. [p. 124]
In short, after reading this ruling I would say that anyone who supports gender equality under law must also support same-sex marriage.