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Feb 5, 2005 12:54 am


Equal Marriage and Gendered Language



"Because marriage is a sacred institution and the foundation of society, it should not be re-defined by activist judges." George W. Bush, 2005 State of the Union Address
A New York state judge has ordered NY City offices to begin issuing same-sex marriage licenses in 30 days unless her ruling is appealed. It will be, mostly because another judge has issued an opposite ruling, and that's what appeals courts do: resolve disputes on matters of fundamental interpretation.

And there is a very fundamental issue at stake here: gendered language.

In her ruling, Justice Ling-Cohan declared that"the words 'husband,' 'wife,' 'groom' and 'bride,' as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to mean 'spouse,' and all personal pronouns, as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to either men or women."
In all other areas of law, as a matter of course, gender is neutral. [OK, I know this is a dangerous overgeneralization given my free-form legal expertise, but I can't think of an exception; if you can think of a relevant exception, feel free to comment] Laws apply equally to men and women, and there are no offenses specifically for one or the other (though often laws are interpreted differentially, that's not inherent in the language). Governor Pataki's spokesperson is entirely correct when they say that the law is" clear that marriage is between a man and a woman" but that's the problem. Ling-Cohan has decided that, as a matter of law, such clarity and specificity on gender in marriage cannot be constitutionally justified, just as specifications about race in marriage fell by the wayside.

It's worth noting, as I have before, that our definition of"family" has already changed to include more variations than it used to. Even in the past,"traditional" families often had blendings and offshoots that were more interesting than the stereotypical nuclear family at the center of a neat bi-pyramidal (hourglass-shaped?) family tree.

The question here, though, is whether it is legitimate to write gender into law? It was in the past, but it hasn't been for some time now. Dismantling the remnants of gendered law seems to have been largely achieved by judicial fiat, and by benign neglect of dead-letter laws; those who oppose"judicial activism" have to acknowledge that this decision is actually a pretty reasonable application of the principle of non-gendered law to the case of marriage. The question is, I guess, whether they can make a case that marriage is a special circumstance, so much so that it overrides the principle of equality. The President's position is clear (well, so are most people's) but legal and historical progress are not on his side in this matter.

Non Sequitur: My father sent along this link to a remarkable compilation of reference material: sizes, shapes, quantities and quality controls.


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Oscar Chamberlain - 2/6/2005

Thank you for the clarification.


Derek Charles Catsam - 2/5/2005

The case was Craig v. Boren, 429 US 190 (1976). Basically, the case applied strict scrutiny in lieu of ordinary scrutiny, but did not make gender a "suspect category" like race.

dc


Derek Charles Catsam - 2/5/2005

Actually, gender does not get the same scrutiny as race does. There was a case (I do not have my sources in front of me either) involving a minor male who had beer in Oklahoma. There were different standards for women then for men (men being perceived as more dangerous with alcohol or something) and the male brought it to court and lost, as gender was not an absolutely verboten subject for legal differentiation. Ergo, we can have women's and men's bathrooms without that being suspect, but we cannot have separate bathrooms based on race. Gender is not the same protected class as race. Ironically enough, this was established by a case in which the discrimination ran against males. Doubt it? Ask why a 20 year old male has higher insurance rates than a 20 year old female with all else being equal. I'll drag up the case when I get to the office.

dc


Jonathan Dresner - 2/5/2005

The case of the military isn't statutory; it's regulatory. Which is to say that the restrictions on women in combat, etc., are Pentagon regulations in which the courts and legislature have implicitly consented, but have not been explicitly legislated or adjudicated.

If it were just a matter of marriage, I'd not think that the exceptions would be a serious problem, legally, but the benefits which accrue with marriage are specific and substantial. Wait until the first time someone filing taxes jointly in an equal marriage state like Massachusetts tries to file federal taxes jointly....


Oscar Chamberlain - 2/5/2005

First, I am taking "legitimate" to mean "legal" or "constitutional" and not to imply a judgement of wrong or right.

I don't have the relevant cases by my side, but the federal constitutional answer is "Yes, but rarely."

Following the 14th amdendment and post-1960s understanding that one could not assume that women were as a group inferior or significantly different in skills, the Court, as a matter of policy, considers gender discrimination by the government suspect and therefore applies an extra measure of scrutiny. However, there has never been a case like Brown v. Board that was so sweeping in its impact that it practically guaranteed that no other government use of race to discriminate would stand.

Furthermore, the Court often interprets federal statutes enforcing such rights somewhat narrowly--a consequence of the majority's states rights tendencies--so that rights are not always well balanced with redress for denial of those rights.

For now, the military remains a special case, and the court is highly reluctant to deal with discrimination there. The best known exceptions to that, the cases involving military schools like The Citadel and VMI rest firmly on the series of cases that preceded Brown v. Board. In these the courts found that states could not offer higher educational opportunities to one class of people that it did not offer to another.

If our military did not allow women to serve these colleges might have remained all male, but because a military career is an option for a woman, a state must provide a military education to both genders or none. (The same set of cases also ruled out having pairs of colleges)

Private sector discrimination was largely abolished by statute, but in the absence of a statute no right to be considered exists. Also existing statutes allow for exceptions. Here the state might have considerable freedom to write gender into law.

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