Why Lesbians and Gay Men Should Read Martha Fineman

WHY LESBIANS AND GAY MEN SHOULD READ MARTHA FINEMAN NANCYD. POLIKOFF* Martha Fineman is the preeminent feminist family theorist of our time. She barely mentions lesbian and gay families; in her article in this symposium issue she does not mention them at all.' Nonetheless, this article and her earlier work should be required reading for all those interested in family law from a gay and lesbian perspective, and most specifically for anyone participating in the debate about legalizing marriage for lesbians and gay men. Through reading Martha Fineman, it becomes possible to see that the equality model that seeks a right to marry on equal terms with heterosexuals, and the incantation of "choice," as in "lesbians and gay men should have the choice to marry,"2 fail to envision a truly transformative model of family for all people. It is that transformative model that Professor Fineman provides. For several years, activists and scholars in the gay and lesbian community debated the value of same-sex marriage.4 It was largely an * Professor of Law, American University, Washington College of Law. 1. Martha Albertson Fineman, CrackingtheFoundationalMyths: Independence,Autonomy, and SelfSufficiency, 8 A . U.J. GENDER, SOC. POLY & L. 13 (2000) [hereinafter Fineman, Crackingthe FoundationalMyths]. 2. The clearest exposition of the equality based and "choice" based reasons to make obtaining legal marriage the preeminent issue for lesbians and gay men is contained in Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intracommunity Critique,21 N.Y.U. REV. L. & Soc. CHANGE 567, 580,591,599 (1994-95). 3. Fineman, Crackingthe FoundationalMyths, supranote 1, at 16-17. 4. One of the most widely cited set of articles taking opposing views on lesbian and gay marriage was written by attorneys Tom Stoddard and Paula Ettelbrick when both were working at Lambda Legal Defense and Education Fund, the nation's largest lesbian and gay legal organization. See Paula L. Ettelbrick, Since When is Marriagea Path to Liberation?and Thomas B. Stoddard, Why Gay People Should Seek the Right the Marryin LESBIAN AND GAY MARRIAGE (Suzanne Sherman ed., 1992). In addition to the article by Wolfson, supra note 2, law review articles reflecting this debate include Nan D. Hunter, Marriage,Law and Gender: A Feminist Inquiry, 1 LAW & SEXUAIrY 9 (1991); Nitya Duclos, Some ComplicatingThoughts on Same-Sex Marriage,1 LAW & SEXUALITY 31 (1991); Mary C. Dunlap, The Lesbian and Gay MarriageDebate:A Microcosm of Our Hopes and Troubles in the Nineties, 1 LAW & SEXUAUTY 63 (1991); William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419 (1993); Nancy D. Polikoff, We Will Get What We 168 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 8:167 academic question. No legal theory had ever persuaded a court to require a state to recognize same-sex marriage, and no organization would have wasted its precious political capital lobbying in state legislatures for such a losing cause. But it was a debate with real consequences because the context often was whether the limited resources of gay and lesbian legal organizations should be devoted to pursuing this particular goal. The intra-community debate was thus about both whether marriage was an institution worth trying to enter and whether, of all the pressing reforms needed by gay men and lesbians, marriage should be a priority. Until 1993, the debates on this topic among the national gay and lesbian legal organizations ended with decisions to stay away from court cases challenging marriage restrictions. Baehr v. Lewi changed all that. In Baehr, the Hawaii Supreme Court held that the state's ban on same-sex marriage was a form of sex discrimination prohibited by the equal rights amendment to the Hawaii state constitution, and it remanded the case to the trial court for the state to attempt to show that the ban was necessary to achieve a compelling state interest. 6 If the state could not meet this strict scrutiny test, Hawaii's ban on same-sex marriage would fall. Almost overnight, the conversation about gay and lesbian marriage moved into mainstream America. There, the discussion was not about priorities or strategies for achieving justice for lesbians and gay men. The lines were rather more starkly drawn between those who abhor homosexuality and reject all claims to legitimacy, protection, and acceptance of lesbians and gay men; those embracing lesbians and gay men as full members of a pluralistic society; and those in between (like President Clinton) who purport to value lesbians and gay men but pick marriage as a line in the sand they will not cross. Congress quickly introduced Legislation entitled The Defense of Marriage Act (DOMA) 7 and many state legislatures introduced analogous bills.8 The federal bill passed easily, codifying "marriage" Ask For Why LegalizingGay and LesbianMarriage Will Not Dismantle the Legal Structure of Gender in Every Marriage' 79 VA. L. REV. 1535 (1993). The debate appears in the gay press, see GAY CoMMuNITY NEWs, Vol. 21, No. 3-4, pp. 4-5, 25-27, 34-35 (1996), and in the mainstream press, see Andrew Sullivan, Here Comes the Groom: A (Conservative) Casefor Gay Marriage,NEv REPUBLIC, Aug. 28, 1989 at 20, and FentonJohnson, Wedded to An Illusion:Do Gays and Lesbians Really Want the Right to Many?, HARPERS, Nov. 1996, at 43. 5. 852 P.2d 44, clarifiedon grantof reconsiderationin par4 852 P.2d 74 (Haw. 1993). 6. Id. (deciding that sex is a suspect category under the Hawaii State Constitution). 7. Pub. L. No. 104-199, 110 Stat. 2419 (codified as amended at 1 U.S.C. § 7, 28 U.S.C. § 1738C (1996)). 8. See, e.g., Alabama Marriage Protection Act, ALA. CODE § 30-1-19 (1998); ARK. CODE 2000] WHY LESBIANS AND GAY MEN SHOULD READ FINEMAN 169 under federal law as the union of a man and a woman,9 and permitting states to disregard same-sex marriages approved in other states.' ° The state bills, which generally reaffirmed marriage as a union of a man and a woman and denied recognition in the state to any same-sex marriage performed elsewhere, passed over the course of the subsequent three years in thirty states." Gay and lesbian legal and political organizations reallocated their resources to mobilize around these legislative proposals at both the state and federal level, spearheaded by the Marriage Project at Lambda Legal Defense and Education Fund in New York. Those of us who opposed the allocation of resources towards facilitating marriage for gay and lesbian couples stayed on the sidelines. We were hardly inclined to oppose same-sex marriage in a climate where such opposition expressed anti-gay sentiment; yet neither could we wholeheartedly join in the fight to achieve an end we fundamentally did not embrace. Those of us who had long opposed advocating for same-sex marriage had tried to reframe the discussion. For example, to those who documented the number of lesbians and gay men who had no (...truncated)