Marriage, Gender, and Law

by Elsa Sjunneson-Norman

The 75 degree temperature at this year’s meeting of the American Historical Association did not deter its international attendees from donning their tweed jackets with requisite elbow patches. The participants had come, not for the weather, but to share research with colleagues on topics from varied time periods, fields, and programs. I was attending because the AHA chose to present a mini-conference on same-sex marriage and the issues it poses in an historical context.

The main attraction of this miniature conference was the “Marriage on Trial” panel. Four scholars spoke on the Proposition 8 case currently before the Federal Courts. The legal historians and lawyers on the panel addressed the Perry v. Schwarzenegger case and the questions it has posed for their respective fields. Joan Hollinger, a professor at Berkeley Law, spoke about the impact the gay rights movement and the California case have had on children’s rights. One of the most important pieces of information she shared was that the judge presiding over the case wants to, “[F]ind as a fact what marriage is. He also wants to find, as fact, whether same-sex parents are good parents or bad parents. He also wants to find, as a fact, whether gays and lesbians have historically been subject to discrimination. He also wants to find the facts about the alleged immutability of sexual orientation. He wants to know if sexual identity like marriage is fluid or not. Or if it is a fixed feature of individuals.”1 For historians, lawyers, and the general public this quote presents a number of issues. Does the court have the right to find sexual identity as a fact to be an immutable and fixed feature of individuals? Is it possible to prove that in a court of law?

Historians have been involved in the legal debates over same-sex issues by filing amicus briefs. For instance, historians George Chauncey and Nancy F. Cott have both been involved in a number of the court cases involving gay and lesbian rights. Their work has been referenced in the Lawrence v. Texas sodomy case, and in the Goodridge Amicus Brief (Goodridge v. Board of Health). Historians are able to lend validity to arguments for social and cultural change in American policy by sharing their expertise. Both Chauncey and Cott were originally scheduled to be part of this event, but because they had been called to testify in the Proposition 8 trial in San Francisco, they were unable to attend this panel. This is the first time in which testimony has been taken for a same-sex marriage case. Previously, advocates for same-sex rights have relied on briefs, documents, and lawyers presenting oral arguments in front of a judge. With testimony comes the danger of witnesses being discredited. Yet, the benefits for the plaintiff are that the stories being told from the chair are compelling and in some ways truly heartbreaking.

This was one of several panels I attended at the conference. My very first panel was on obscenity law in the twentieth century, an important part of my field. The field of obscenity law links directly into issues of same-sex marriage because often it is argued that homosexual relations are  “obscene” in nature. While sexual intimacy between a man and a woman is accepted and commonly portrayed as romantic, the depiction of the same behavior between two men or two women  is often seen as “vulgar.”  The three papers presented focused on the Varga Girl Pinups of the 1940s (Sarah Lindsley, UW,) Lee Ann Wheeler’s discussion of the ACLUs involvement in free speech cases in the mid-twentieth century, and the 1969 Commission on Obscenity paper by Dr. Whitney Strub.

Their work demonstrated how the flexibility of obscenity law allows for it to be applied to more aspects of life and situations than would seem immediately relevant. Furthermore, these papers seem to suggest that obscenity is prosecuted when it begins to make money. Esquire was prosecuted under postal guidelines for shipping obscene materials through the public mail; however, it was the only magazine of its kind with the fiscal resources to fight back.

Another panel I attended addressed the issues of gender and sexuality on the high seas. The first presenter, Dr. Matthew Raffety, discussed the issue of gender in seafarers’ jailhouse confessions. In studying the confessions of four men he had found a pattern of blame that referenced either the “Bad Mom” or the “Femme Fatale” as the reasons for their criminal activities. These confessions were often barely tenable as excuses or explanations for the crime in question. Dr. Raffety questioned whether publicizing such confessions reinforces gender stereotypes. I would argue that it would. 2

All of these panels and their respective papers demonstrate how relevant notions of gender are to contemporary legal debates. Whether the issue is same-sex marriage/union, nudity, or criminal culpability the law reflects and reinforces social and cultural biases. ▢

1 Joan Hollinger, Marriage on Trial Presentation. January 9th 2010.

2 Raffety, Matthew T. “I Fell In With a Woman Who I Thought Was All Virtue”: Sex and Violence in Antebellum Seafarers Confessions.” Unpublished (2010)

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