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Gay Marriage, Change, and the Law

Fineman's assessment that laws do not cause social change, but merely reflect it, is intimately connected to the conservative argument against gay-marriage. The fear of conservatives (that gay marriage will be legally recognized and legalized), reflects the eroding of their own base beliefs in the matter; if gay marriage is legalized and recognized, it means that their views on both society and the law have weakened.

As for the change gay marriage may bring, it is no different then the changes that marriage has endured over the millennium. A thousand years ago, the conservatives ideological ancestors would have been petrified by the idea of no-fault divorce, or a child-less marriage; a thousand years from now, they will no doubt be arguing about inter-planetary marriage between inhabitants of Earth and Mars. Change is a natural part of life and the law, and something conservatives seem to have a deep-seated fear of in general.

Related Article

After writing my blog I went onto Slate to see if Dahlia Lithwick, my favorite jurisprudence journalist, had written anything new. She had, and this article seems to fit perfectly with our readings this week. I just thought I would share!

Blog Post 8

The conservative argument that same-sex marriage threatens traditional marriage may have some validity. Without compromising my own beliefs, I might agree that the definition of traditional marriage (heteronormative) would fundamentally alter if same-sex marriage was legalized. I think the disagreement arises when you argue whether or not this is necessarily a negative result. Traditional marriage is a social institution (Hunter p. 16) that could be perceived as oppressive to women, especially in a historical context. There are individuals who may desire to enter into a relationship that resembles a traditional marriage. It is when you attempt to codify this belief as law that one perceives inequalities. This serves to propagate existing gender and social hierarchies of power between men and women. Using the religiously idealistic union of heterosexual intercourse as a vehicle by which legal rights are distributed violates the constitutionally guaranteed right of every citizen to equal protection under the law.

I believe that law is both a result of shifting ideologies in society, and that laws can cause social change. Approaching these conditions as mutually exclusive may endanger the perceived effectiveness of laws in general. I find myself agreeing with the theoretical approach of Hunter, in that the legalization of same-sex marriage poses a threat to gender systems; in this case, it would be a law that effects change. However, the realization of same-sex marriage as a legally recognized institution must be preceded by a certain level of desire for change and shift in social perceptions.

I found the dichotomy between formality and functionalism in Robson's article to be an interesting interpretation of dynamics within post-modernism. Robson's argument that functionalism perpetuates the idea of a 'normative' standard could prove useful when looking at other forms of post-modernist theory.

The other claim I found interesting was made by the Department of Public Health in Goodridge, regarding the "optimal social structure for raising children" (Goodridge, p.10) In a blog post earlier, I believe someone mentioned the inherent inequality of using reproductive ability to determine fitness for marriage. I would agree that unless the state is proposing required medical screenings prior to the issuing of a marriage license, this argument is without merit.

Blog 8

Last week in class I stated that I disagreed with Fineman that law never causes social change but rather can only reflect the current state of society. While I think law is neither the most efficient or meaningful way to enact social change, it seems to me to play a fundamental role in creating openings which cause social reality to be questioned. I stand by this belief, and think this is especially true in regard to the discussion over legalizing gay marriage.

Hunter and Robson both believe that gay marriage becoming legal would have force in altering the gendered state in marriage. My first reaction to the readings was shock at just how much the decisions in cases which they cited rely upon concepts of gender, in spite of the idea of formal equality which has been put into place as concerns marriage law. The Minnesota Supreme Court decision refers to the "fundamental difference in sex" - yet at the same time courts are having to deal with cases Robson highlights in which individuals have transitioned from one sex to another, making the difference in sex seem distinctly less fundamental. Those courts seem to deal with this fact by simply closing their eyes and declaring whatever someone's birth certificate defined their sex as at birth is what marriage law will continue to see them as: I'm picturing Judges sticking their fingers in their ears and singing "nananana I can't hear you!"

The crux of the issue of social change seems to come up in parallel to Hunter's note that "the terms of marriage as a legal institution have changed dramatically; it is the social power relations between men and women, inside or outside of marriage, that have changed much less significantly." While the current decisions against gay marriage seem so logically weak that it is hard for me to imagine that gay marriage will not become legal in the near future, the question is if this legal change would have any effect on those power relations based on gender. On a certain level, you have to imagine that attending gay and lesbian weddings, encountering legally married people of the same gender, and seeing the dynamics of such partnerships on a more daily level (not disqualified by their lack of legality) would cause many men and women to consider the dynamics of their own marriages. I can see gay marriage serving as a lens with which to reconsider what it means to be married. Such change would not occur the moment new laws were passed though, and you can be certain that as with formal equality, many will cling to the older definitions.

Blog 8

I am not sure where I stand on Fineman's statement about law and social change. I think that mostly laws reflect social change, but I can see how laws could create social change. Legalizing same-sex marriages could create social change by changing the definition of marriage and by changing gender roles. To answer the questions in the prompt, I think first it's important to explore the meaning of marriage. In my opinion there are two ways you could define marriage. Some people define marriage as the union between a man and a woman. Some people define it as just the union of two people in love. Changing marriage laws to allow same-sex couples to marry would in fact be changing the definition of marriage from the union between a man and a woman to just the union of two people in love. I think that down the line changing marriage laws will help to change the gendered definition of marriage and gendered roles as well. Hunter writes about how same-sex marriages can change gendered roles in marriage since there will not be a husband and wife. Hunter writes about how the titles husband and wife affect the roles of each spouse in the marriage. Same-sex marriage would help to change this method of assigning roles since gender roles will be broken down. Hunter also reflects on how same-sex marriages could change the concept of marriage and change the way we view social power relations in a marriage or relationship. These changes could then lead to a new perception and definition of marriage. I think that the legalization of same-sex marriage could create social change in the future by making roles in marriage less gendered and by potentially creating change in social power relations in heterosexual relationships.

Week 8

Fineman's argument that law cannot change society, that it merely reflects change, is disagreeable. It would be hard to argue that law changes society. One can cite laws that might have affected society in other places, like legal prostitution, gun control, or the legalization of drugs in other affluent countries. Those laws that might have changed society directly, but there's great difficulty in determining if society shaped those laws or if the laws shaped society. The relationship of laws and society seems too dynamic to argue either way. At least, there are some instances where one occurs and other instances where the converse happens. It is an overgeneralization to say that law cannot change society and difficult to say that law cannot change society. It is more accurate to say that, most of the time, law reinforces societies beliefs, which, though to a lesser degree than implied, is a changing of society.

Marriage as an institution would probably change if the focus were to change to how people perceive marriage. Also, change in meaning would also change as a result of changing marriage law. It doesn't have to be a dichotomy. Changing one will affect the other and vice versa. The conservative argument that same-sex marriage will destroy traditional marriage might not apply. Though I'm sure there are some changes that can be made if perceptions of marriage were to be altered, there is still the freedom for one to adhere to traditional marriage values without the need for the law to reinforce them. That is, the changes that the law can make if one wants to adhere to a conservative traditional marriage seems negligible.

blog 08 // marriage

I don't think that it's realistic to put too much stock in the law, and I certainly don't think that the law is more capable of change than people are. This, first of all, puts even more reliance on government structure and elite - we already have enough of that. And, we can never find enough change in laws. I agree with Fineman's statement, that the law reflects change, but, I think that is even being a bit generous; it is commonly a struggle to get the law to reflect change. It is obviously a useful apparatus because it provides some sort of concrete way of structuring or measuring activities, however. Postmodernist approaches can seem too theoretical at times.
The Nan Hunter piece demonstrated a combination of both a legal and postmodernist approach, i think. Her analysis of marriage, through both law and theory and reality, established the many ways that a change in marriage law would actually make a difference. Marriage is more than household rules, it's a solidification of gender, and naturalizes hierarchical roles. Legalization would tackle the normalcy or the automatic placement of gender rules. This would resonate, even if mildly, far beyond same-sex marriage. While the law here would not literally change patriarchy, it would, as Hunter said, destabilize it. In this way I was pretty convinced that such a law could actually change things, or at least be a step. With that, I don't think that the focus on change should only be on how people perceive law and society, because movements can't be based on abstract solution. At the same time, like I said, activism that simply hopes to change law isn't good enough. This is why I really enjoyed the Hunter reading - she explicitly says that change has to take place within and outside of the legal structure.

Blog 8

I believe that changes to marriage as an institution must come from changes in the perception of gender and marriage. I agree with Robson when she says that the focus on equal rights, or the focus on heterosexual intercourse as the definition of marriage, only reinforces normative meanings of what marriage should be. The functionalist approach mentioned is theoretically based on using "real" facts which should be a way to use laws to change things. However, basing rulings off of the reality of peoples lives is really basing rulings off of the normative idea of how peoples lives should be and so emphasizing heteronormative relationships and concepts. Goodman also discusses this as it is stated that reformers arguments are based off of the usual conservative "fundamental" marriage rights and not drawing off of how the courts have redefined marriage. This too reemphasizes the importance and normality of heteronormative marriages. Goodman further discusses how the meanings of marriage and gender must change first showing the innaccuracies of studies on children of various parental marital status' based on biases and manipulation. Because of this it is the definition of "rational", often used as a deciding factor in rulings, that must change before any law can change.

Also, even when certain rulings are made, they are not necessarily upheld or rational. The overriding emphasis on procreation which quite often does not allow same-sex marriages completely overlooks the fact that women who are not able to get pregnant are not interrogated about their 'fundamental biological' disposition nor is it a means to forbid a marriage between a man and a woman who is perhaps not able, or not want to, bear children.

Only changing laws is not effective unless the change in perception has come as well. Laws are manipulatable, are able to be ignored or twisted depending on who is using or abusing them. Hunter's theory is that legalizing same-sex marriage would drastically challenge normative ideas of man/woman and marriage. However, she stresses at the same time the importance of using different techniques than previously used. She believes that the law of marriage is based on gender categories and that "gender dissent" is needed to change the law and that legalization would disrupt gender norms.
Overall I agree, for the most part, with Hunter. While laws absolutely influence people and can change the direction of societies beliefs, I don't think that new laws, or intended function of new laws, can be used unless there is a fundamental change in perception of marriage and gender.

Arguing that allowing same-sex marriages will destroy traditional marriages is an example of both laws being a reflection of society and laws influencing social values. Traditional 'Christian' values have long been implicit in courts rulings although they have not always been outright said. These conservative values are generally reflected in laws and laws are often manipulated to fit those values. In the same way the laws that have been created originally based on conservative normative values reinforce those values through those laws.

The connection between societal values and laws is a circular system that reinforces the other. I do believe that laws influence people and in many ways controls people, in order for new laws to be created and effective, new meanings and perceptions of marriage and gender must be brought about in society.

blog 8

Yes, I do think we will see change in how marriage as an institution operates because the main force behind marriage (In this world) is how people precieve it. In getting married you have a big wedding and reception so that people (Who you love) will precieve your marriage in their own way wheather good or bad.

I also think that marriage law should incompass all marriages wheather man and women, women and women,or man and man. Marriage should be based upon love between two people no matter what the sex. So marriage law should be changed to incompass marriages for all people not just certain people (heterosexual).

There is a little battle with Fineman's contentation about how " law cannot change society but merely reflects change". if marriage law was changed to have same sex marriage legal everywhere, society would change and people would be more open with their partnership with their loved ones instead of running off to vages or canada to get married.

Blog 8: Marriage

After reading Hunter and Goodridge this week, it is quite evident that marriage is a socially constructed institution based upon socially approved ways of living. We, as a society, are more likely to see changes in how the institution of marriage is views in society if we do changes the way people view it. In Hunter's article, he states, "Marriage is, after all, a complete reaction of the law, secular or ecclesiastical" (Hunter 13). The idea of marriage, to some, is bound in religious purpose and beliefs. To others, it is a "reaction" to how our society is practiced and believed to be (monogamous, heterosexual, etc.) If we view marriage as a "reaction of the law," it is easier to see the flaws in it. For example, last week when speaking about viewing women and men as equal in divorce proceedings, we saw that inevitably these cases we unequal in a court of law which viewed the bonds of marriage as necessary for the family unit. Soon, roles of the parents began to be clearly defined and delegated by the courts. These roles then, according to Hunter, are not innate, but instead are reactions to the law that is currently set. If we focus upon how people perceive marriage, others will see the inevitable inequality present in the court and the social ratifications (such as gay marriage bans) that come from this.

In terms of the conservative argument, neither a change in meaning or legal change benefit is allowed. Marriage, to the conservative group, is something that cannot be changed in meaning and therefore, will not be changed legally. With the religious pressure defining marriage, a legal change cannot be performed and nor is their space for any social change in the marriage definition. Same-sex marriage, in my opinion and from reading the authors listed above, is an issue based more in personal opinion than legal matters. Same-sex marriage aims not just to achieve a legal equality with traditional marriages, but to be recognized the different interpretations to the word and practice of marriage. Of course, the law has the highest authority in granting these couples marriage licenses, but social pressures and resistance do have the power to push legal proceedings in a different direction than others have done.

Week 8 Blog Assignment

Last week, we discussed Fineman's claim that the presumption of equality between spouses in divorce proceedings has been harmful to women and children. This week, we are reading about efforts to expand and redefine marriage as a more inclusive institution. Hunter and Robson both contend that state recognition of same-sex and transgender marriage and other forms of intimate partnership could fundamentally change the gendered basis of marriage.
Keeping in mind the theoretical approaches that we have studied, consider Fineman's contention that law cannot change society but merely reflects change in light of the arguments posed in the Hunter article and in Goodridge. Do you think that we are more likely to see changes in how marriage as an institution operates if the focus is on changing how people perceive marriage (the postmodern approach), or is change in meaning one result of changing marriage law? How does the conservative argument that allowing same-sex marriage will destroy traditional marriage fit into the interplay between legal change and change in meaning?
I want your opinion, but please base your argument in the texts that we are studying.

Suggested length: 200 words