This month, the Supreme Court will decide the Prop 8 case, known as Hollingsworth v. Perry, and the DOMA case, known as US v. Windsor. An analysis of what these cases are and what they mean for the gay community and the prospects for a gay success can be found on Towleroad, in the writings of Ari Ezra Waldman.
These cases, the Prop 8 case and the DOMA case, are important because the Defense of Marriage Act, which denies federal recognition of marriage equality anywhere may be overturned, and many commentators believe that the Prop 8 case is going to result in legal marriage equality at least in California. People who get married in Massachusetts, and all the other states which currently offer marriage equality, will get all the federal benefits currently withheld from them, and the largest state in the union will join the twelve currently offering marriage equality. The sheer number of persons able to be married to members of their own sex will hugely increase. So this is huge. Because it is huge, the possibilities for disaster are also very great. A defeat on the Prop 8 case would be crushing, and a defeat on the DOMA case would set us back by a generation.
But there is another way of looking at all this. Almost anything the Supreme Court does this month is going to be a setback for everybody. I wrote about this in a post called It ain’t necessarily so, in February 29, 2012, and that post is worth reading again. What’s happening—whatever the Supreme Court does—is that our constitutional jurisprudence is beginning to harden around the belief that a citizen has a “sexuality,” that there are three sexualities to choose from (gay, straight, and bi, and you can already begin to see the problem developing here), that a person has a sexuality all his or her life (the same one), and that to get your rights, you have to come out, which means you have to place yourself somewhere in this scheme and stay there. I wrote then, “Our culture is developing an understanding of sexuality—and writing it into the law through these court cases—that is rigid, narrow, confining, and immutable, while our sex is fluid, expansive, mutable, and constantly surprising.”
In that blog post, I talked about people who think of themselves as “straight,” but who propose to have sex with men, or who think of themselves as “gay” but aren’t gay all the time. People who don’t recognize any clear bright line between the two. I know a guy who loves his wife and has never been non-monogamous, but who thinks of naked men every time he has sex with her. Things just aren’t divided up into three sexualities. They are very fluid, and they are very mutable, and very expansive.
I concluded with this paragraph: “The consequence of what’s happening is that people who follow their hearts, or their genes or their lusts, are still not going to find themselves reflected in the structures laid down by the culture and are going to be told, “You do it wrong,” “You are wrong to feel that way.” In these court cases, we are developing an intellectual framework for our sexuality that is going to be as guilt-inducing as the one we’ve had for the last forty years, and it’s clear that it’s the culture, which likes binary thinking because it’s simpler, that has gotten it wrong again.”