Monday, August 24, 2009

(Still) not fit to be named: moving beyond race to explain why 'separate' nomenclature for gay and straight relationships will never be 'equal,'

Courtney Megan Cahill, (Still) not fit to be named: moving beyond race to explain why 'separate' nomenclature for gay and straight relationships will never be 'equal,' 97 Geo. L.J. 1155 (June 2009)

In Perry v. Schwarzenneger, the federal lawsuit against Prop. 8, Theodore Olson last week filed a supplemental case management statement on behalf of plaintiff same-sex couples. In this documents, Olson indicates that plaintiffs will engage psychologists to testify the psychological effects of Prop. 8:
"Plaintiffs intend to demonstrate that relegating lesbian and gay families to a separate legal institution for state recognition marginalizes and stigmatizes gay families; that there is a significant symbolic disparity between domestic partnership and marriage; that the inability to marry relegates gay and lesbian relationships to second class status; that the creation of the alternative regime of domestic partnership reinforces anti-gay prejudice, which has the potential to escalate into violence; and the stigma associated with discrimination and second-class treatment takes a toll on the well-being of gay men and lesbians and their familes." (pages 12-13; bold added)
In her law review article, Cahill offers a novel way to understand the "symbolic disparity." She places the idea of "second-class status" in the unique historical uses of language to reinforce homophobic prejudice. She considers
why the use of separate nomenclature to describe gay and straight relationships will never be equal,even if those relationships are substantively identical, as well as why something that looks like a stepping stone to equality (civil unions/domestic partnerships) is, in fact, discriminatory and harmful. While advocates routinely turn to the repudiated legal doctrine of separate-but-equal to support their contention that nominal separation is unconstitutional, they have overlooked the history that best explains why that is so. That is, they have overlooked the most persuasive reason why the nominal separation between “marriage” and “civil union” (or “domestic partnership”) will never satisfy genuine equality: Because it hearkens back in any number of ways to homosexuality’s criminal past, and, in particular, to a time when same-sex intimacy was known simply, and derogatorily, as “a crime not fit to be named ... [W]hen the state refuses to extend “the ‘m’ word” to same-sex couples, as more than one court has tellingly framed the name issue, it reminds gays and lesbians that they have always been excluded from names (in one way or another) in the law and that they have suffered, and continue to suffer, a variety of harms on account of that exclusion. It reminds them, in short, that the “gay closet”—or, more specifically, the gay linguistic closet—remains “a shaping presence” in their lives.

1 comment:

Jay Jonson said...

Excellent insight about the historical "unspeakableness" of homosexuality. Ms Cahill is undoubtedly correct, yet it is also true that in many of the states that now have marriage equality, civil unions were a stepping stone to equality (Vermont, Connecticut, New Hampshire).

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