Ann Bartow at Feminist Law Profs points us to a new article by Marc R. Poirier offering an innovative argument against the opponents of same-sex marriage. Called “The Cultural Property Claim Within the Same-Sex Marriage Controversy,” Poirier argues that “traditionalist” opponents of same-sex marriage rights are in effect making an illegitamate cultural property claim on the definition and performance of marriage. From the abstract: “The protection of shared cultural symbols, rituals and traditions can be approached doctrinally and understood culturally in several ways in addition to a cultural property claim, including trademark dilution (especially trademark tarnishment), intellectual property rights that protect against unauthorized performance, laws against blasphemy and desecration, and environmental prohibitions of pollution and contagion. The article examines each of these, shedding light on the unexplored mechanics of the signal congestion that often lies at the heart of the traditionalist concern.” And in a nice Judith Butlerian way, the article “focuses not only on the name and status of marriage, but also on the daily performances of gender roles that marriage authorizes and facilitates, and that same sex marriage apparently threatens to dilute or disrupt. The article thus applies both property concepts and gender performance theory to the same sex marriage controversy.” See especially his discussion of “Marriage as Ongoing Gender Performance” on p. 38, the headline of section IV of his essay. (Download it here. Poirier loves him some cultural studies–you’ll find Mary Douglas in his footnotes too.)
Poirier’s analysis offers several fruitful ways to beat the argument about the so-called “threat to traditional marriage” posed by same-sex marriage. Historiann wishes we would return to traditional marriage, American-style, and define it the way that John Winthrop and Cotton Mather did: as a civil contract because marriage is a human invention. (Adam and Eve were merely “shacking up,” in Dr. Laura’s inestimable formulation.) Remember, folks, desacralizing marriage was one of the indisputably great things to come out of the Protestant Reformation. This is probably the one area of agreement between John Winthrop, Cotton Mather, and Historiann. Americans have redefined marriage throughout history–for example, revising marriage in the mid-19th century so that it didn’t rob women of their property rights; first prohibiting interracial marriage (ca. 1660-1720 in most English colonies), then permitting interracial marriage (in 1967, in Loving v. Virginia); and of course, the no-fault divorce revolution of the 1960s and 1970s, just to name a few of the major revolutions in American marriage history. On p. 14 of his essay, Poirier indicates too how the legal definition of marriage varies not just across time, but across jurisdictional lines, from state-to-state. So, including same-sexers in the fun seems like only a minimal revision of the potpourri of rules that we’re already re-writing constantly anyway.
Poirier gets at the truth of people’s discomfort with same-sex marriage–at least the truth as I’ve always seen it, and explains why gay marriage is seen as a “threat” to “traditional marriage.” He writes on p. 50, “[T]he injury traditionalists percieve, whether or not they would themselves describe it this way, comes in significant part from the fact that the gender binary is reaffirmed or challenged in the microperformance of couples everywhere, day in, day out. . . . When many people engage in similar gender performance, the normative components of their lived experience around gender, sex roles, and heterosexual components, are reinforced; indeed, they come to seem quite natural and unperformed.” In other words, without a narrow, state-enforced definition of marriage, how will we know who wears the pants? How will we know who’s supposed to mow the lawn and who’s supposed to keep the kitchen tidy? How will we know whose last name the children will have, and who should be paid more for the same work? (Freedom! Horrible, horrible freedom!) Queering marriage means not just permitting same-sexers to motor on down to any Las Vegas wedding chapel, but it also necessarily shatters the illusion that heterosexual marriage is a stable and natural institution. It doesn’t threaten any marriage in particular, but it does threaten to expose “traditionalist” marriage as something that’s just as constructed and artificial as any other kind of marriage.
I’ve got all kinds of opinions about straight marriages and where they go wrong and where they’re hopelessly screwed up, and I’m sure you do, too. I probably wouldn’t approve of your ongoing gender performance of marriage (straight or gay), and you probably wouldn’t approve of Historiann’s performance or marriage, if she is married. So let’s agree to just bitch and gossip about each other privately like we always have, deal with our own happy and/or screwed-up (or happily screwed-up) marriages, and get out of the way of other people’s civil rights–the way adults do in a free society. M’kay?