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Thursday, February 07, 2013

Marriage as a "Genderless Institution"

Howard has posted that he is skeptical of the primary arguments against marriage equality briefed in the Perry case so far.  I share his skepticism.  I write about a different point that struck me while I was reading the petitioners' merits brief  for a tutorial I'm co-teaching on the federal marriage cases.  In their brief, the Perry petitioners refer to the marriage equality movement as an effort to change "the public meaning of marriage from a gendered to a genderless institution."  (p. 51)  The phrase "genderless institution" appears several times in the petitioners' brief.  I can only assume that petitioners believe that the specter of marriage as a "genderless institution" will disturb some members of the SCOTUS, and the American public. 

Oddly enough, the phrase "genderless institution" -- and the idea that the loss of marriage's gendered implications might be troubling -- reminded me of the work of social theorist Ivan Illich.  In 2011, Western New England hosted a symposium on the work of Illich.  His 1982 book, Gender, argued that modern life threatened conceptions of gendered roles, particularly work, that were important to human life.  At the time, he faced significant criticism from feminist scholars.

Whatever one believes about the normative value of gendered roles, the petitioners' brief in Perry suggests that Illich was right that the passing of a gendered order would be perceived by some as fundamentally disturbing.  It also confirms that marriage equality is about gender, as well as gay rights.

Posted by GiovannaShay on February 7, 2013 at 09:42 AM | Permalink


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Giovanna, I thought this was a very interesting take on the marriage cases. For ruminations on a related them, you might find interesting Darren Rosenblum's article from last year nsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012). http://digitalcommons.pace.edu/lawfaculty/827/. The Journal did a symposium online and bricks and mortar on the paper, http://harvardjlg.com/2012/02/unsex-mothering-online-colloquium/. My own paper in the symposium on what it would mean to get rid of gender and sex as part of reproduction, The Science, Fiction, and Science Fiction of Unsex Mothering, http://ssrn.com/abstract=2087603, may also be of interest.

Posted by: I. Glenn Cohen | Feb 8, 2013 12:00:30 AM

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