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Same-sex marriages in the US: the elation & arguments around a historic verdict

Devika Bakshi | Updated on: 28 June 2015, 14:14 IST

Yesterday, same-sex marriage became legal in the entire United States.

This is a seminal moment not just in US, but global history. It will have ripple impacts across the world, in societies that take at least some of their cultural cues from America.

Not only does the judgement draw a hard line in the sand in the US legal system, it sets a hugely persuasive precedent for the fights for marriage equality everywhere else.

The US Supreme Court (SCOTUS) was hearing a clutch of cases appealing against same-sex marriage bans in the states of Ohio, Tennessee and Kentucky.

In its verdict yesterday, the court did not just outline a broad legislative framework that could be selectively followed by the states; it ruled that the right to marry was fundamental, and protected by the 14th Amendment to the Constitution, which guarantees equal protection for all citizens before the law.

In effect, it mandated that marriage licenses be awarded to any consenting same-sex couple in any state, the way they would be to opposite-sex couples.

This means even the deeply conservative and hardline southern states will have to fall in line. Allowing same-sex marriage is no longer a matter of cultural discretion.

It would be hard to overstate the extent to which domestic American politics in the last decade or so has been shaped by the issue of marriage equality.

It's been one of those key partisan issues, used to distinguish Republican from Democrat, conservative from liberal, and to mobilise support and rile voters during elections.

Watching the progress of the debate has been almost like watching a sport - except, you know, with lives and liberties and huge symbolism at stake.

Here are some of the more interesting contours, textures and moments in the discourse surrounding a historic, hard-fought judgement:

But what will 'marriage' even mean now?

The main bone of contention over the legalisation of same-sex marriage was that it would fundamentally alter the traditional understanding of marriage as between man and woman.

To this, the Supreme Court judgement had to say: "The history of marriage is one of both continuity and change. Changes... have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations."

What kind of positive changes is SCOTUS talking about? The legal recognition of interracial marriage.

Everyone's favourite shut-down of the 'don't mess with tradition' defence was delivered by Justice Ruth Bader Ginsburg (who is honestly just earning the hell out of her 'Notorious RBG' meme) on 28 April when the nine Supreme Court justices were hearing arguments on this case:

"Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court's decision in 1982 when Louisiana's Head and Master Rule was struck down. Would that be a choice that state should [still] be allowed to have? To cling to marriage the way it once was?"

The Head and Master rule, by the way, gave the man of the house the final say in all household decisions and property without the wife's knowledge or consent. Louisiana was the last state to have repealed the law, in 1979.

Ginsburg gets closer than the judgement does to making the point that needs to be made: not only has marriage changed, it should change.

Those worried that this judgement will have a lasting impact on the meaning of marriage are right. It will.

The Court's opinion, delivered by moderate swing-vote Justice Anthony Kennedy, seeks to smooth down that sharp edge by underlining the importance of marriage in terms that seem rather quaint.

But the fact is, this judgement prises 'marriage' away from gender-unequal, heteronormative - 'traditional' - understandings and nudges it closer toward an elective partnership.

One man's rip in the social fabric is another gal's wiggle room.

But what about the kids?

Those who fight for the traditional definition of marriage - some of whom are already issuing calls to action against the judgement - centre their argument around children.

"Marriage is a matter of public policy," it is argued in the piece linked above, "because marriage is society's best way to ensure the well-being of children. State recognition of marriage acts as a powerful social norm that encourages men and women to commit to each other so they will take responsibility for any children that follow."

Whole papers - well, 'papers' - have been written to argue against the idea of marriage as a "genderless, adult-centric institution", to argue that there exists a "social reality that children deserve a mother and a father".

Those worried that this judgement will have a lasting impact on the meaning of marriage are right. It will

It's tiresome to have to poke this logic-hole, but the idea that the "well-being of children" is best ensured by the presence of a mother and a father - that is, a male and a female parent - rests utterly on the idea that there must exist two distinct roles in a parenting partnership, and that they must be played by people of distinct genders.

Who says? Who says good parenting, a strong family unit, an ideal child-rearing environment, require the kind of rigid, gendered division of labour suggested by this argument?

In fact, the judgement doesn't queer parenting as much as you might hope. It merely points out that opposite-sex marriages are allowed not to be about children, so same-sex marriages shouldn't be held to that standard.

Baby steps, I guess. Most of us are still thinking of stay-at-home dads and working moms as radical. We're still a long way from contemplating partnerships of trans or gender-queer people who may not think in terms of homemaking and breadwinning.

But not everybody likes it! Are we interfering with democracy?

Ah, democracy. The justification for all manner of ills.

Some of the justices on the bench felt the matter at hand ought to be resolved through democratic decision-making, not an invocation of the Constitution - that redefining marriage was a job for the legislature, not the judiciary.

This line of reason will be familiar to those who paid attention to our own Supreme Court's judgement on Section 377 in 2013.

But Justice Kennedy's majority opinion states that "While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right."

The lag in democratic process, the judgement reasoned, can often allow great harm to come to individuals, and so, "An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act."

The democracy versus Constitution debate will probably go on. But it's hard to argue against an individual seeking protection against discrimination.

And it's educative to remember democracies are not just about majority will expressed through votes but a set of values of freedom and equality around which people have agreed to live as a society.

Unintended consequences

While some worry about how legalising same-sex marriage will fundamentally restructure society (and threaten to self-immolate in protest), and others ponder the implications of the dissents filed by the four outvoted justices, conversations have begun within the LGBTQ community about what this will mean for their broader movement.

In perhaps the best quick-response to the judgement, Slate's J Bryan Lowder worries the freedom to marry will become "the coercion to marry, both from outside and within the community."

He wonders whether relationships and social structures within the community, evolved in the absence of marriage as an option, will now be rearranged and end up reflecting undesirable aspects of heteronormative culture - such as the hierarchical advantage to wealthy white men.

This fear about gay marriage reproducing some of the worse aspects of straight marriage should be fresh in our minds from the critical conversation around the now famous matrimonial ad Harish Iyer's mum placed in Mid-Day last month seeking an 'Iyer' groom. Is it progress if legalised gay marriage is also caste-based?

Lowder raises another salient question: what next?

"The issues coming next for the LGBTQ movement-transgender protections, religious liberty laws, employment discrimination-are far more complicated and far less cute compared with marriage."

Will allies continue to lend support? Will those who make the mainstream with marriage - wealthy white men - bother with the discrimination faced by trans people? Will the assimilationist and radical queer discourses within the movement further self-segregate?

These are the questions worth addressing. Because marriage is now a constitutional right in the United States, and there's no turning back.

First published: 28 June 2015, 14:14 IST
Devika Bakshi @devikabakshi

Senior correspondent at Catch, Devika specialises in furnishing the office with quality coffee. Previously: staff writer at Open magazine, waitress and student of Comparative Literature. Generally preoccupied with climate change, usually reassured by mid-20th century American music. Loves podcasts and tomatoes. Moonlights as a student of Spanish and is frequently mistaken for an owl.