It has become a common refrain among progressive legal scholars and activists that Obergefell v. Hodges, securing the right of same-sex couples to marry under the Fourteenth Amendment, primarily benefits already privileged members of the LBGTQ+ community, leaving those with marginalized racial, gender, and class identities behind. These scholars claim that the right to marry will either fail to benefit communities of color, sidestep the systemic issues that subordinate them, or even legitimate structures of white supremacy. (Pp. 220-21.) The prediction that follows is that securing marriage rights for same-sex couples will appease the wealthy, white, cisgender contingent, ultimately undercutting support for the movement’s more transformational goals of sexual and gender liberation, and the push to value broader configurations of relationships. I have raised these very views in class every time I teach the marriage equality cases.
An exciting new study by Professors Russell Robinson and David Frost challenges these views, cautioning that they need to be qualified if not substantially revised. Robinson and Frost start from what should be a pedestrian—but in fact feels like a radical—premise: perhaps we should ask LGBTQ+ people who are also racial, gender, and/or gender-identity minorities how they themselves perceived Obergefell’s “personal impact on their lives and relationships.” (P. 222.) The responses they receive are, to put it mildly, tantalizing. Although only a slim majority of participants described Obergefell as having “an emotionally meaningful impact on them,” very few criticized the decision to make marriage equality a priority. (P. 226.) Several participants were able to distinguish between their own personal disinterest in marriage and their happiness at other members of the LGBTQ+ community being able to marry. (P. 229.) And several reported that the decision made them feel more included and less stigmatized within their families of origin, religious institutions, and communities. (P. 236.) The authors contend that these findings should influence how legal scholars talk about the Obergefell decision and conceive of the relationship between judicial decisions and lived experiences of equality. I will argue here that their findings should also guide the development of future social movement strategies.
The data for the study come from interviews the authors conducted with 99 individuals in three cities, Chicago, San Francisco, and New York City, between the summers of 2015 and 2019. The authors created the pool of subjects by oversampling LGBTQ+ people of color, transgender, and non-binary people, with the goal of achieving a “critical mass of multiple subgroups.” (P. 222.) Participants were initially found by inviting people from a large number of LGBTQ venues, including non-mainstream venues such as coffee shops, bookstores, people of color-oriented community groups, and churches, as well as advertisements, the authors’ professional networks, and, ultimately, snowball sampling. From a total of 992 people who responded to the eligibility questionnaire, the authors invited 120 participants for an interview, 99 of whom ultimately completed those interviews. Slightly more than half identified as gay or lesbian; half identified as queer, bisexual, transgender, genderqueer, and/or non-binary. Over two-thirds identified as people of color. The interviews lasted 60-90 minutes and covered a variety of topics. The questions forming the basis of the instant study were as follows: “In June 2015, the Supreme Court ruled that same-sex couples have a fundamental right to marry. Has this decision impacted your thoughts about marriage? If so, in what ways?” Unmarried participants were also asked “whether they personally were interested in marrying and why or why not.” (P. 225.)
The authors and their research assistants coded for several themes in the participants’ responses, including, but not limited to, “Emotionally Meaningful for the Participant”; “Happy that Other People Can Marry”; and “Criticism of Marriage as Heteronormative, Patriarchal, or Inconsistent with Queer Values.” (Id.) These codes form the basis for numerical findings, like the finding that 55% of participants described Obergefell as having an emotionally meaningful Impact on them, and that only 11% criticized marriage as an oppressive, patriarchal institution. Given the study design, these findings are not generalizable. Rather, the relatively large and diverse sample provides a rich and varied lode of descriptive material for the authors to mine. It is the transcript excerpts quoted at length in the article that really captivate.
The authors quote from an exchange with a bisexual Latina in her mid-20s to illustrate some of the themes they observed. The participant describes how her professor, “a Catholic” and “one of those most religious people that I’ve ever met,” announced to the class that she was finally able to marry her partner. The participant’s reactions appear to unfold in real time: “It’s just one of those like, ‘Wait here.’ Then it also hit me like, I never knew. . . . Then I thought, wait, you’re really, really religious, why does that feel like there’s something wrong with that? I was like, oh, okay. Then it just made me feel happier.” (P. 226.) The participant continues, “Then I started to realize there were more [same-sex couples] holding hands now all of a sudden in public. I remember a couple saying the reason they always hold hands is because they remember when they were little, they saw a couple do that, . . . and that was their sign of hope that maybe one day I can hold a hand too. That’s why I tend to always hold hands [with my female, Latina partner], ‘cause you never know how people are perceiving it or what you’re making someone feel.” (P. 227.) The authors describe this as “a cascade of positive developments in [the participant’s] life and community that swept far beyond marriage itself[,]” having an intergenerational as well as communal impact. (Id.)
Of course, some participants have critical views about Obergefell. One participant, a Black gay man in his 50s, says that “marriage was just going to give gay White men more access to power and resources in a way that Black gay men specifically would not have access to.” (P. 230.) Another participant, a Latinx, gender non-conforming gay man in his 20s, opines that “to be viewed as a dignified human being in this society because I’m married . . . . I don’t approve of that.” (P. 232.)
The analysis section of the study is full of important insights for family law and civil rights scholars. The authors contend that focusing on access to marriage ignores all the other work that the right to marry may be doing to uplift people positioned at the bottom of the LGBTQ+ community. Participants believe that the right to marry has conferred respectability regardless of whether they actually married. Some participants express confidence that they can “transform the right rather than conform to mainstream forces in the heterosexual, cisgender community and the White LGBTQ community.” (P. 236.)
The authors astutely observe that several of the participants expressing negative views of marriage equality were legal scholars and queer activists, and note the possibility that their views might reflect queer-theoretic and radical feminist critiques of marriage rather than the experiences of people on the ground. (P. 237.) In so doing, they caution those of us who teach and write about marriage to question our assertions about the relationship between marriage law and inequality, and to recognize the different types of work that marriage equality might do for those still excluded from its benefits, like friends, relatives, and people in polyamorous relationships.
Finally, the authors remind us about the limits of our careful doctrinal analysis: the general public may care less about Justice Kennedy’s casual stigmatization of nonmarital relationships or the fact that Obergefell did not technically elaborate an independent Equal Protection Clause holding. (Id.) Instead, for many of the study participants, the opinion is foremost about anti-subordination, leading the authors to speculate that perhaps in time the court of public opinion will “shed Justice Kennedy’s exclusionary rhetoric about marriage serving as the only pathway to human happiness and civic belonging,” and transform Obergefell into an opinion “centrally advancing equality for all.” (P. 238.)
The importance of these insights is immediately apparent when considering another social movement in medias res. In recent years, several advocacy groups have successfully worked with municipal governments to create domestic partnership statuses for multi-partner relationships. Best-selling books, news articles, and TV shows have brought more attention to consensual non-monogamy (“CNM”.) As we speak, an American Psychological Association (“APA”) task force (of which I am a part) is drafting a report to be considered for adoption by the APA summarizing the current state of psychological research and making policy recommendations akin to those made on behalf of the LGBTQ+ community starting four decades ago. Many of the same questions and debates raised in the context of same-sex marriage—whether people really want the rights in the first place; why more people have not registered for the municipal domestic partnerships; whether communities should be focused instead on abolition or other strategies; who would stand to gain or lose from formal recognition—are being asked as scholars and advocates consider the way forward. Robinson and Frost’s article is a timely reminder to the nascent CNM movement(s) to think intersectionally and not to lose sight of the voices “at the bottom” as it forges ahead.
