Five days have passed since the Court hearing on Obergefell v. Hodges. Things got off to the wrong foot when Justice Kennedy, to whom most people are looking to make the majority, expressed how disturbed he is by the proposal to change an institution that has been around for “millennia.” People all over America jumped on the justice for not having a more sophisticated knowledge of the history of marriage. Every few years another very good history of marriage comes out from an important publishing house, all of them detailing the astonishing changes that have been wrought in the institution, and apparently Justice Kennedy has not read any of them. It is hard to believe that any sentient being is alive today who really believes that any human institution has survived unchanged for millennia. With marriage, one has only to look around himself or herself to know that my marriage to C is not the same as my parents’ marriage to each other, and is not the same as our children’s marriages, and certainly not the same as our grandchildren’s marriages, when they happen, far far in the future—if they decide to marry. None of us have a marriage like our grandparents’, and now that we are grandparents, I am content that the kids’ are not going to be like mine. For a longer view, go to see the next production of Taming of the Shrew for a depiction of marriage in 1593, or read Portrait of a Lady for a picture of marriage in 1896. There was a time in the sixties when eight couples around a table at dinner divided themselves on the question of whether they were married before or after the publication of Betty Friedan’s The Feminine Mystic (1964). They had different marriages. The idea of an unchanging institution corrupted by some impatient LGBTQ folk seems to have taken hold in some quarters and made everybody’s lives more difficult. It’s a lie, though, and it makes it difficult for all of us to live under the moon, where we all live, and everything changes all the time.
Then there’s the other theme of Justice Kennedy’s, or, as Dahlia Lithwick calls him, the dignity-whisperer. Kennedy found himself confronted by the Assistant Attorney General of Michigan, John Bursch, over the question whether the institution of marriage conferred dignity on those who had gotten married. Kennedy thought it did, and Bursch thought it didn’t. I hope Kennedy votes for the rights of LGBTQ people in their conference, but I really wish he would found his decision on something other than the idea of gay people getting “dignity” from marriage. What dignity I have comes from my being a human, conscious of hurt and pleasure and beauty and love, conscious that I am loved and that people around me let me love them. What marriage does is it gives me a legal way to structure my life and my relationship with C so that we can’t be damaged by a thoughtless and indifferent state. It is a kind of shorthand, which announces that two people who aren’t genetically related are in fact each other’s closest kin. “Marriage” is one of the ways people can organize their love for each other. Another way is without marriage, for those who don’t want the state mucking around in their relationships. What I argue for here is a conception of marriage which does not separate those who are married from those who aren’t. Gay people know that there are many many people who, even with the right to get married, are not going to avail themselves of that right. C and I were together for twenty-three years without marriage, and marriage, among our friends, once it became available, was something that some did, and some didn’t. The point here is that people are different, and I am opposed to establishing a pattern for people’s lives, similar to that pattern that most of us heard from our parents —honey, you’ll grow up and fall in love and get married—even if we knew we weren’t going to do any such thing. The point here is not that marriage is the fount of “dignity” as Justice Kennedy would have it, but that what we want from the Supreme Court is a recognition that LGBTQ people possess inalienable rights which everyone else possesses, which are long established—that is, a person who is a member of the LGBTQ community possesses inalienable rights to free speech, free exercise of religion, access to marriage which we can make use of or not, the right to choose our own partner, if we want a partner, the right to have the government stay out of our bedrooms. If you need help with this, just ask a gay person. LGBTQ people have been doing relationships just fine for a long time without the state’s and without religious people’s approval, and we do it without all the cant that inevitably seems to come trailing after marriage. It is my understanding that gay people want to be free and want to be treated like everyone else.
I think I prefer my rights cold. Not because I am good but because I am alive. Isn’t this what the Declaration of Independence asserted? All men (and women) are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness. He didn’t mention marriage. But “pursuit of happiness” seems to include within its meaning that I can go after marriage if I want and you can choose not to go after marriage, my pursuit is equal to your pursuit, and we can be friends and respect each other. Just give us what was promised to us, and what is mine by right, and the justice can keep his dignity. I already have enough of my own. What we want is freedom and equality.
The title is from “Valediction: Forbidding Mourning,” John Donne