A Union Unlike Any Other

Chapter 5 analyzes Justice Kennedy’s majority opinions for the Supreme Court in Windsor and Obergefell. Refuting the procreation argument, Justice Kennedy sutures married lesbians and gays into full American citizenship. Despite the progressive outcome of the opinions, they provide additional evidence for the changing construction of childhood foreshadowed in earlier chapters and examined in depth in the conclusion. Recurring themes of dignity and legal recognition appear to weave gays and lesbians to the national order, thereby avoiding the symbolic damage that would have resulted had the Supreme Court allowed existing beliefs about heterosexuality to flourish and determine the outcomes. Despite the lofty elegance of Justice Kennedy’s opinions, these texts also display a preservation of heterosexual privilege. Minimizing the differences between lesbian/gay and straight marriages assimilates lesbians and gays into a heterosexual script and renders us legally straight.

The Nearest Hippie

This chapter analyzes dissenting opinions from the U.S. Supreme Court’s rulings in Windsor and Obergefell. Although the procreation argument was used sparingly by the Court, it does appear in modest form. More important are the justices’ uses of the themes of power, privilege, and liberty to justify maintaining the silences surrounding their antigay animus. For the dissenting justices the Court’s rulings in both cases signify an expansion of “We the People” that is unacceptable, a move from which they explicitly distance themselves and represent themselves as victims of a powerful minority. Their masculine heterosexual privilege was compromised, and the dissenting justices took it personally.

The End of Heterosexuality?

This chapter outlines the theoretical and methodological framework for the book. The theoretical foundation is developed from a survey of the long history of scholarship on feminism and queer theory in order to examine heterosexuality, reproduction, abortion rights, and childhood in greater detail. Drawing on law and culture scholarship, the chapter proposes a methodology that utilizes thick description to explore the legal and cultural changes in marriage, particularly insofar as the sexuality of the institution has changed in recent decades. The common theme running through the chapter is the elusiveness of heterosexuality as a concept and its resistance to sustained investigation and critique. Working backward across the timeline of life—from adult marriage, to childhood, to fetuses—the chapter foreshadows the end of the book and the ways that the marriage debate is part of the same set of social and political conflicts as childhood sexuality, fetuses, women’s bodies, and reproductive rights.

Introduction

This chapter introduces the main ideas of the book by placing the LGBT marriage debate in a wider context. It offers an unscientific survey of books published about marriage, weddings, and divorce in order to highlight the cultural value of marriage. The chapter briefly surveys the wedding industry, as well as lesbian and gay marriage as a global movement, emphasizing the role that children and childhood have played throughout the debate. The chapter also introduces the methodological approach of the book, one that relies on key judicial opinions in order to trace the fractures and realignments that opened in our understanding of heterosexuality as it was subjected to increased scrutiny. In these texts we can see that what was once characterized as an elusive object of analysis was brought into the spotlight. As we looked closer, it seemed that marriage was becoming tarnished, and the trouble appeared to center around one very specific issue: reproduction.The chapter concludes with an overview of what is to come in subsequent chapters.

Children by the Carload

This chapter examines later cases in the marriage debate and shows how the procreation argument developed in American jurisprudence. As opponents pressed the procreation argument to its most logical extremes, it underwent a period of construct elaboration. The argument began to focus attention on children, childhoods, and gender socialization, thus changing the cultural value and meaning of marriage. As this chapter demonstrates, developing the procreation argument made clear that it could not withstand increasing scrutiny and, instead, began to crumble under its own weight. Marriage, it seemed, existed for the sole purpose of justifying and making sense of careless heterosexual reproduction.

Conclusion

The conclusion weaves together the arguments from previous chapters to examine the elasticity of childhood and gender socialization in other areas of the law. Child sexual abuse, childhood sexuality, Title IX, abortion rights, and sexting provide material for understanding how conceptions of childhood, marriage, and the family are changing. While the book shows how much has changed in the law and culture of marriage, much remains the same. Rather than undermining heterosexuality and the marital ideology associated with it, the legal language of the lesbian and gay marriage debate has instead shored up and strengthened the social scripts associated with heterosexuality, gender, reproduction, and childhood. Age, childhood, and gender have become the dominant markers of properly domesticated sexuality.

Old as the Book of Genesis

This chapter looks at the early cases in the marriage debate beginning in 1971. At that time the procreation argument was asserted with little or no elaboration as an argument for denying marriage to lesbians and gays. Marriage, according to this argument, existed because the sexual activity of heterosexual couples, and only heterosexual couples, could result in reproduction. Focusing on uses of the argument shows that regulating sex and gender roles was a prominent concern of those opposed to lesbian and gay marriage. The chapter demonstrates that the opponents of lesbian and gay marriage are more concerned with regulating gender roles and sexuality, more specifically sex, than they are about supporting the integrity of the family. Children and childhood are secondary to the overarching concern with controlling sex, gender, and reproduction.