Queer Relations: A Reading of Martha Nussbaum on Same-Sex Marriage
Jakobsen, Janet R., Columbia Journal of Gender and Law
This symposium on the work of Martha Nussbaum as part of the inauguration of the program on Gender and Sexuality Law at Columbia Law School provides a chance to reflect on the reasons for a focus on gender and sexuality in the study of the law. After all, one might ask, are questions of gender and sexuality--at least those beyond a few matters like discrimination--not private concerns that should rightfully be beyond the realm of the state and its laws? If we look at public policy over the past half-century, however, gender and sexuality have been central to a range of crucial questions of social policy as they have been enacted in law--from welfare reform to immigration policy to health care--and so it is crucial that this area be taken seriously in the study of law as well.
As my way of phrasing this opening indicates, I am not a scholar of law, but rather of social policy and social movements, as these fields are understood within religious studies and through the lens of ethical analysis. I have used the tools of my training in social ethics and the study of religion to consider the role of gender and sexuality in contemporary U.S. policy. Martha Nussbaum's extensive body of scholarship includes a focus on a range of social policies in conjunction with her explorations of constitutional law. Having written widely on questions of gender, Professor Nussbaum has more recently turned to sexuality as well, and her interest in constitutional law has taken her to a question that continues to roil both public discourse and public policy in the U.S.--same-sex marriage.
Nussbaum takes up this issue at several points, most recently in her book, From Disgust to Humanity. Gay marriage also remains a crucial social issue of the day, although a difficult one to summarize given that the situation is remarkably fluid and the battles around the country over gay marriage shift on an almost daily basis. Same-sex marriage was, of course, the confounding defeat for progressive forces in the November 2008 elections despite the overwhelming victory of Barack Obama in the presidential campaign. Obama was victorious in the state of California by a wide margin, but a majority of Californians also voted for Proposition 8, a referendum reversing the California Supreme Court's recognition of same-sex marriage. In the court battle that ensued, Prop. 8 was upheld by the California Supreme Court, but so were the gay marriages performed between the initial legalization and the passage of the referendum. This means that in California some same-sex couples are legally married, but at this time no other similarly-situated citizens of the state can join them. In the spring of 2009, however, there was a pronounced swing in momentum on the issue, with Iowa, Vermont, New Hampshire, and Maine joining Massachusetts and Connecticut in granting same-sex marriages, while New York and the District of Columbia chose to recognize these marriages but do not yet grant them. None of these decisions really settled the issue, even in these few states. Californians have begun litigation to overturn Proposition 8, while in Maine, a coalition called Stand for Marriage gathered signatures to put the bill on hold until a measure similar to Proposition 8 could be put to the voters. In November 2009, the repeal of Maine's gay marriage bill passed by a narrow margin, meaning that gay marriage was rescinded in Maine before it could take effect. Yet, these state-by-state battles are not the only site of conflict on this issue. In July 2009, these issues were brought to the federal level when the State of Massachusetts filed a suit in federal court challenging the federal Defense of Marriage Act (passed in 1996 and defining marriage as "between one man and one woman") as violating the exclusive prerogative of the states to define marriage. (1) So, despite the new spate of state recognition, the battles that may be faced in the remaining states--including the ongoing battles in states like California--and at the federal level mean that gay marriage will remain on the national agenda for some time to come. …