Gender Stratification, Homosexuality and the American constitution

By Yasser Latif Hamdani

The ethos of the American society has been informed by two main influences:  One the Puritan Christian values inherited from European immigrants primarily from England but also other places and two the harsh conditions the immigrants faced in the wilderness of a new land which necessitated a protected environment for what was deemed as the weaker sex. Christian society in its essence was a patriarchal society and the same traditional patriarchy was carried across the Atlantic by the early colonists. The primordial roles of the man as the hunter/gatherer (and by extrapolation merchant, soldier, ruler) and woman as the homemaker and mother of the man’s children have been ossified to an extent that even in this advanced age, we are unable to break through it entirely.[1]

 

The role of the housewife- epitomized by the useless chatter and banter of the Desperate Housewives- still remains the rule whereas the lawyer, the judge, the doctor or the pilot etc are the exceptions. Even in the workplace till well into the 1990s the main role of women was that of a personal assistant or a secretary or a nurse but never something serious like a doctor or a lawyer.  This of course has changed quite a bit but herein lies the rub i.e. women now have to juggle roles i.e. be a homemaker and a successful professional. Added to this is the issue of compensation which remains a sore point for women. Most women earn up to as much as 25% less than men for similar roles.  Unlike Europe there is no equal status legislation to outlaw blatant differentials in pay based on gender. Therefore while women have charged forwards to share in traditional male roles, by and large the men in our society remain committed to their hunter gatherer role and have no role in what was and still continues to be a traditional female territory, almost out of condescending spite for women. 

 The idea that two men or two women can be each other’s companions sexually and indeed as part of a long term relationship threatens the established gender roles that have been drummed into us since time immemorial. Perhaps more accurately it threatens the very basic economic structure of society i.e. property and inheritance. Marriage was an exclusivity contract to ensure the accurate determination of inheritance. After all somebody had to inherit the cave. A woman with multiple sexual partners meant paternity disputes. Gay marriage outflanks all of this and creates a brand new paradigm – one could say it is the Copernican Revolution of our understanding of marriage. The resistance to gay marriage, often disguised as religious, when pierced shows that the real reason has to do more with the functional aspect of what marriage has traditionally been viewed as i.e. an institution to preserve order and discourage chaos. Modern marriage is no longer dependent on the original rationale for creating the institution in the first place. With DNA testing and test tube reproduction, the issues of paternity are no longer an issue. Marriage then becomes as smart legal fiction to ensure certain collective rights to a new imagined sub-unit i.e. a couple who may be heterosexual or homosexual. Time has come therefore to find a new rationale for marriage and the objections to gay marriage will fritter away. In others words, it is high time to reframe the issue in light of modern realities in this day and age.  

While the issue has become a states’ issue, the main objection to narrowly construing marriage as a union between a man and a woman (as the Defense of Marriage Act, 1996 does) is based on substantive due process available under the 14^th Amendment to the US Constitution[2]. Therefore most of the efforts in this regard are aimed at re-establishing these parameters.

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[1] For more on this see Roscoe, Will (2000). Changing Ones: Third and Fourth Genders in Native North America. Palgrave Macmillan

[2] 55 U. Chi. L. Rev. 1161 (1988) Sexual Orientation and the Constitution: A Note on the Relationship between Due Process and Equal Protection; Sunstein, Cass R.