. 6
( 8)


Jan Morris, Conundrum (Harcourt Brace Jovanovich, 1974), p. 3.
Cited in Jay Prosser, Second Skins: The Body Narratives of Transsexuality (New
York: Columbia University Press, 1998), p. 77.
Jennifer Finney Boylan, She™s Not There: A Life in Two Genders (New York:
Broadway Books, 2003), p. 21.
Morris, Conundrum, p. 172.
R E T H I N K I N G S E X A N D G E N D E R I D E N T I T I E S 173

gender roles. Yet, she dismisses the idea. ˜˜I believe,™™ she writes, ˜˜the
transsexual urge . . . to be far more than a social compulsion but
biological, imaginative and spiritual too.™™49 For Morris, the soul
that medieval feminists sought to keep neuter is a profoundly sexed
and gendered one.
Of course, someone could wish that he or she were a Chinese
person although he or she was not, or wish that he or she were a right-
handed person although he or she was not. Some transsexuals at
least sometimes understand themselves in this way. Thus, Deirdre
McCloskey writes of the epiphany she had that she was a woman but
she also tells her sister, ˜˜I don™t think I™m a woman. I want to be
one.™™50 Wanting to be a man or a woman, however, is very different
from thinking that one ˜˜really™™ is one. It is no different from wanting
to be a gymnast or a Chief Executive Officer (CEO) without yet being
one. Just as one might want to be a man without yet having the normal
or, in Butler™s sense ˜˜normed,™™ body for it, one might want to be a
gymnast without possessing the right body or coordination for it and
one might want to be a CEO without having the necessary chutzpah.
But if wanting to be a woman (or a man) is different from the sense one
has that one is a woman (or a man) despite the way one™s body is
understood by others, what sense of identity is this latter sense?
How are we to understand the sense that some transsexuals possess
that they are men or women and are trapped in the wrong bodies?
Bornstein thinks this sort of claim is simply ˜˜an unfortunate
metaphor that conveniently conforms to cultural expectations rather
than an honest reflection of our transgendered feelings.™™51 In her case,
the feelings that led to her genital surgery were feelings of not wanting
to be a man rather than either wanting to be or thinking that she was a
woman. She also asks, ˜˜What does a man feel like? What does a

Ibid., p. 173.
Deirdre McCloskey, Crossing: A Memoir (Chicago, IL: University of Chicago Press,
1999), p. 59.
Bornstein, Gender Outlaw, p. 66.
174 A F T E R I D E N T I T Y

woman feel like?™™52 These are good questions. In her autobiography,
Christine Jorgenson claims that she had ˜˜sissified™™ ways as a young
boy; she did not like to fight and sometimes cried.53 She kept a small
piece of needlepoint in her desk and carried her books in what her
sister insisted was the way girls, not boys, did. Yet, she does not say
that she felt like a woman or that she was in the wrong body. Instead,
she and her doctors understood her body as only ˜˜seemingly male.™™54
Her view seems to be that she had a glandular problem caused by
insufficient testosterone and that undergoing genital surgery was
a way to correct the condition.55 To this extent, her story is more
about medicine than it is about sex or gender. McCloskey, for her part,
compares her ˜˜crossing™™ from being a man to being a woman to other
changes in identity one might accomplish, from being an elementary
school teacher to being a hospital chaplain and from being a shop-
keeper to being a monk.56 She also compares herself to the kind of
foreign traveler who becomes so enamored of a country that he or she
decides to live there permanently. As Donald McCloskey, she always
liked to dress in women™s clothing. After her children were grown, she
thought she ˜˜might cross-dress a little more. Visit Venice more too.™™
As it turned out, she writes, ˜˜I visited womanhood and stayed.™™57
Thinking one has a medical condition that makes one effemi-
nate or deciding to become an ex-patriot because one likes Venice
are not expressions of some pre-existing or authentic identity. I do
not see how we can follow Bornstein and dismiss some people™s
unshakeable convictions that they have been born into the wrong
bodies. Nevertheless, although Morris, Thompson, and Boylan speak
of their sense of possessing a fundamental sex and gendered identity
that conflicts with their external appearance, it is also important
that not all transsexuals speak this way. What memoirs and

Ibid., p. 24.
See Christine Jorgensen, Christine Jorgensen: A Personal Autobiography
(New York: Paul S. Eriksson, 1967).
Ibid., p. 111.
See Jorgensen™s letter to her parents in Christine Jorgensen, pp. 123“126.
56 57
McCloskey, Crossing, p. xii. Ibid., p. xiii.
R E T H I N K I N G S E X A N D G E N D E R I D E N T I T I E S 175

autobiographies by transsexuals show is just how varied and multiple
our senses and understandings of what is most fundamental to who we
are can be. Two children brought up as Christians might both find that
identity lacking in some way. For one, the sense of the lack might be so
important that he or she converts to another religion or discovers that
he or she is ˜˜really™™ Jewish or Muslim. For the other, the deficiencies
of his or her original religious identity might be of less consequence.
Sex and gendered identities are similar. Some people understand
themselves as primarily sex and gendered and this sense of who they
are is so powerful that they must transform their bodies to express
their inner selves if they determine that their present appearance is
not adequate as this expression. Others are less invested in their sexes
and genders. Perhaps these people understand themselves in primarily
religious terms so that what most importantly requires affirming or
changing is their religious identities. Others may understand them-
selves to be fundamentally younger ˜˜at heart™™ than their ages or bodies
signal. Hence, like transsexuals, they may seek plastic surgery in order
to transform their appearance so that it more nearly fits the younger
identities they possess. Yet, while some people must cross religious,
age, or sex and gender boundaries to become who they understand
themselves to be, others need not and they need not for at least two
reasons: either because they already are who they understand them-
selves most fundamentally to be or because their sense of possessing
an ˜˜authentic™™ or ˜˜most fundamental™™ identity is less compelling. In
each respect, however, identities as men and women are of a piece
with our other identities. We can make them more a part or less a part
of our individual moral psychologies just as we can make identities as
professionals more a part or less a part of our moral psychologies.
In comparing sex and gender identities with racial identities,
Appiah performs a thought-experiment that leads him to a different
conclusion.58 Suppose one were to undergo a series of operations to

K. Anthony Appiah, ˜˜˜But Would that Still be Me?™ Notes on Gender, ˜Race,™
Ethnicity as Sources of ˜Identity™,™™ in Race/Sex: Their Sameness, Difference, and
Interplay, Naomi Zack, ed. (New York: Routledge, 1997).
176 A F T E R I D E N T I T Y

alter one™s external ˜˜racial™™ appearance, changing the shape of one™s
nose, darkening or lightening one™s skin or making one™s eyes more or
less round. One would still be the same person, Appiah says. The
alterations would not change who one was or one™s fundamental
identity. But suppose, in contrast, one were to undergo a series of
operations to alter one™s external sex appearance and gender, restruc-
turing one™s chest, reshaping one™s genitals, or taking artificial hor-
mones. In this case, Appiah says, one would become a different person.
Morris has precisely the opposite view, of course, insisting that in
going through her surgery she finally became who she really already
was. Indeed she writes of the result of her sex-reassignment surgeries
that ˜˜I had reached Identity.™™59 Yet, in a way, this view simply sub-
stantiates Appiah™s point. A sex-reassignment operation either
changes utterly who one is or makes one utterly who one understands
oneself to be. A race-change operation does not. ˜˜˜Racial™ identities,™™
Appiah writes, ˜˜are for us “ and that means something like, us in the
modern West “ apparently less conceptually central to who one is than
gender . . . identities.™™60
Yet just as transsexuals understand their transition from one
sex and gender to the other differently they also understand the
continuity of their lives differently. Indeed, different people would
presumably have different answers to Appiah™s question about
whether they still are who they once were, whether or not they had
undergone sex-reassignment surgery. For some people, the narratives
of their lives take shape as straight-on trajectories and the adult
emerges from the child without dead-ends or detours. For others,
surely, when they think over their lives they encounter so many
twists, turns, and re-evaluations that they do not understand them-
selves to be the same people as they once were in any way. McCloskey
writes that, ˜˜It™s strange to have been a man and now to be a woman.
But it™s no stranger perhaps than having once been a West African and

59 60
Morris, Conundrum, p. 163. ˜˜˜But Would that Still be Me?™,™™ p. 79.
R E T H I N K I N G S E X A N D G E N D E R I D E N T I T I E S 177

now being an American.™™61 For most individuals, in fact, it is probably
the case that they understand themselves to be the same people they
were in the past in some ways and not in other ways. Moreover, this
probably holds for those who know them as well. Think again about
the Califia-Rices who met and fell in love as lesbians, parted ways, and
then met and fell in love again after both had begun to live as men.
Despite taking hormones and undergoing various sex-reassignment
surgeries, presumably each still saw those aspects of the other that had
initially drawn them together. Sex-change and race-change operations
do not differ in kind from one another in their hermeneutic status.
Nor, more importantly, do they differ from any of the other changes
we may undergo in our views of who we are or ought to be. We can
change from liberals to conservatives, for example, from religious
people to secularists, or from West Africans to Americans. In all of
these cases, we might also revise some of the ways we understand
ourselves, our past, and our future. Others presumably understand us
differently in some ways as well. But, in most cases, we do not aban-
don all of our self-understandings. Nor do our acquaintances find
nothing of who they previously took us to be. We remain intelligible
to ourselves and to others in some of the same ways, just not all of
them. In an epilogue to Boylan™s memoir, the novelist Richard Russo
writes about Grace, the person who had been James Boylan™s wife and
was now Jennifer™s:

Years earlier, her heart had inclined in the direction of another soul,
and now, against the advice of many friends and well-wishers, she™d
had the wisdom to understand that when our hearts incline “ often
in defiance of duty, blood, rationality, justice, indeed every value we
hold dear “ it™s pointless to object. We love whom we love. In the
past two years, for Grace, everything had changed and nothing had
changed. Her heart still inclined, as was its habit.62

McCloskey, Crossing, xii.
Richard Russo, ˜˜Afterword: Imagining Jenny,™™ in Finney Boylan, She™s Not There,
p. 299.
178 A F T E R I D E N T I T Y

If we can and often do understand ourselves to be both the same
people we were in the past in certain respects and to be entirely differ-
ent people in other respects, then changing from a man to a woman or
the reverse differs only in that it involves a change in pronoun. Of
course, it could be argued that the fact that we cannot approach one
another except by using masculine and feminine pronouns shows
the extent to which individuals are always and primarily men and
women, girls and boys. Pronouns always designate us as male or
female, men or women in a way that they do not designate us as blacks
or whites, parents or non-parents, sports fans, or opera buffs. Indeed,
other pronouns behave quite differently. In German, one can be ˜˜du™™
to certain people and ˜˜Sie™™ to others and the same holds for ˜˜tu™ and
˜˜vous™™ in French. Perhaps nicknames have something of the same
function in the United States but, in any case, all three instances
emphasize the different identities we have in different contexts in a
way that ˜˜he™™ and ˜˜she,™™ ˜˜his™™ and ˜˜hers™™ cannot. Moreover in lan-
guages in which all nouns have one gender or the other, the centrality
of sex and gender understandings would seem to be deeply entrenched.
Yet, why should pronouns indicate who we are in any more
˜˜conceptually central™™ a way than the bumper stickers we put on our
cars or the name-tags we wear? Like bumper stickers and name-tags,
pronouns serve as convenient descriptions. At a conference, a person
might wear a name-tag that indicates who he or she is in terms of his
or her professional affiliation. At his or her child™s school, however,
the same person might wear a name-tag that indicates who he or she is
in terms of the child of whom he or she is the parent. The same holds
of pronouns. Although they indicate one of our identities, they do not
show that this identity either exhausts or necessarily grounds who or
what we are. Of course, their prominence presents a particular diffi-
culty for remembering the multiplicity of ways we have of under-
standing who we are “ similar, perhaps, to the way the prominence
in graduate school applications of students™ scores on the Graduate
Record Exam (GRE) presents a difficulty for evaluating prospective
graduate students. Both are often the first aspects of people that we
R E T H I N K I N G S E X A N D G E N D E R I D E N T I T I E S 179

know. Nevertheless, we also know enough not to allow our knowl-
edge of GRE scores to exhaust our understanding of an applicant™s
claim to be a worthy candidate. Nor need pronouns ground or remain
central to our understanding of who or what a person is. For her part,
Virginia Woolf dismisses them in an aside:

Orlando had become a woman “ there is no denying it. But in
every other respect, Orlando remained precisely as he had been.
The change of sex, though it altered their future, did nothing
whatever to alter their identity . . . His memory “ but in future we
must, for convention™s sake, say ˜˜her™™ for ˜˜his and ˜˜she™™ for ˜˜he™™ “
her memory then, went back through all the events of her past life
without encountering any obstacle . . . The change seemed to have
been accomplished painlessly and completely and in such a way
that Orlando herself showed no surprise at it.63

Woolf™s thought experiment leads in the opposite direction to
Appiah™s. Orlando is able to understand her life in exactly the same
terms she had understood it before her transition from a man to a
woman. No reinterpretation of that life is necessary. To the contrary,
whereas we might suppose that a religious or political conversion
would require one to rethink one™s past actions and affiliations,
Orlando™s change from man to woman is accomplished without
erecting any obstacles in considering her past. All that has changed
is the pronoun appropriate to referring to him or her, and Woolf says
this change is only a convention.

There is no hermeneutic basis for distinguishing an understanding
of others or ourselves in sex and gender terms from an understanding
of others and ourselves in any other terms. Some individuals will
worry about their identities and identifications as men and women

Virginia Woolf, Orlando: A Biography (New York: Harcourt Brace & Co., 1928),
pp. 138“139.
180 A F T E R I D E N T I T Y

more than others will, just as some people will worry about their
religious identities and identifications more than others will. Some
of the people with these latter worries will take on different religious
identities and some will not. Some individuals will live their lives
more in line with one of their identities than in line with any of the
others and some will live their lives in line with more than one or even
all of them. Yet, what about misidentification? What about the nor-
mative questions that Riley™s, Bornstein™s, and Butler™s analyses raise?
When are understandings of individuals as men and women appropri-
ate and when should they cede ground to other interpretations? Why
should we be women in histories of labor and not women in our job
In answering this question with regard to racial identities, we
returned to textual interpretation and to the hermeneutic circle of
whole and part. Many different interpretations of a text may succeed
in integrating parts into a unity of meaning but interpretations that
fail to do so also fail as interpretations. Hammill™s interpretation of
Caravaggio™s ˜˜Sacrifice of Isaac™™ tries to understand the painting as a
˜˜scene of pederastic anal sex.™™64 Yet, the interpretation fails to inte-
grate its understanding of Abraham™s knife, which it takes to be
˜˜strikingly erect,™™ with other elements of the painting including the
building in the background, the direction of the angel™s finger, and
Abraham™s position in it. Suppose we look at the Sears case. Is identity
as a woman intelligible in the context of selecting a sales force? What
about in the context of university teaching?
The entrance of those centrally identified as women into uni-
versity teaching gave rise to new disciplines such as women™s studies.
It also led to new ways of looking at both canonical texts and the
content of ˜˜the canon™™ itself. Yet the same holds for the entrance of
Straussians, Kantians, Marxists, and Republicans into university
teaching. They help understand texts from the perspective of esoteric

Graham L. Hammill, Sexuality and Form: Caravaggio, Marlowe and Bacon
(Chicago, IL: University of Chicago Press, 2000), p. 89.
R E T H I N K I N G S E X A N D G E N D E R I D E N T I T I E S 181

teachings, universal principles, the critique of ideology, and supply-
side economics, and can be illuminating in doing so. They also include
different books in their canons and develop new fields. Yet, if the
entrance of diverse groups into university teaching opens up new
perspectives, the validity or enlightening character of those perspec-
tives is independent of the identities of those offering the insights.
Typically, in fact, only when insights seem forced or tendentious
do questions about the identity of those offering them arise. If a
scholar™s interpretation of a text makes it a sexist one in a way that
fails to make a coherent whole of the text, it can be interesting to ask
why the scholar developed the interpretation he or she developed and
one answer to this causal question might refer, legitimately or illegit-
imately, to his or her sex and gender. Of course, it might, instead, refer
legitimately or illegitimately to his or her political identity.
Identity as a woman, a liberal Democrat, a religious person, a
Straussian, or a Kantian might make a difference to the subjects one
teaches, the canon one accepts, and the textual meanings one discov-
ers. Yet, the worth of one™s discoveries does not depend upon those
identities but upon the ability of the interpretation to illuminate the
text and to do so in ways that others find valuable. Similarly, if one is
part of a sales force, one™s sex, gender, or political affiliation might
make a difference to the products one wants to sell or to the way that
one sells them. Yet, just as clearly, it might not. McCloskey writes of
telling the dean of his college that he intended to become a woman.
Both McCloskey and his dean were economists, both were members
of the business college at their university, and both were adamant
proponents of the free-market. When McCloskey advised the dean
of his intended transformation, the dean quipped, ˜˜Thank God . . .
I thought . . . you were going to confess to converting to socialism!™™65
For a free-marketer, becoming a woman is far less momentous than
becoming a socialist precisely because it has less to do with one™s
economic perspective.

McCloskey, Crossing, p. 93.
182 A F T E R I D E N T I T Y

What about identities as men and women in medical contexts?
Surely it is important to understand certain people as female patients
for purposes of determining proper nutrition, susceptibility to certain
diseases, or conditions such as pregnancy. Yet, is it? We have already
considered the confusion over menopause caused by understanding
individuals primarily as women and childbearers. Are the confusions
to which understandings in terms of sex and gender lead not as danger-
ous as those to which understandings of people in terms of race are?
If we understand individuals as blacks or non-blacks in the context of
screening for sickle cell anemia, we risk a series of misdiagnoses.
Given the mixing of the United States population, identities as blacks
and non-blacks would seem to be particularly inappropriate to medical
contexts. But dogmatically insisting on these identities also means
that we can overlook the possibility of sickling in individuals from
southern India and the Arabian Peninsula while looking for it in the
Xhosa of South Africa. Medical contexts are similarly inhospitable to
sex and gender identities. Does screening for ovarian cancer in women
under the presumption that they all possess ovaries make any more
sense than looking for sickling in Xhosans? Does urging individuals as
women to take calcium because women are at risk for osteoporosis
mean that we overlook the risks of osteoporosis for individuals as
men? In deciding which medical tests to conduct or preventative
therapies to encourage, should we not rather ask what characteristics
specific individuals possess rather than who or what they are (among
the many whos and whats they are)? If we are interested in medical
research into the causes and risks of being left-handed, ought we not
look at the medical histories of left-handers? Similarly, if we are
interested in the nutritional needs caused by pregnancy ought we
not research outcomes for those who have been pregnant and offer
nutritional advice on this basis?
Pregnancy raises a particularly fraught set of answers to ques-
tions of identifying patients as women, for many feminists have
argued that a refusal to look at pregnant people as women leads to
inequities. In the 1974 case of Geduldig v. Aiello, the Supreme Court
R E T H I N K I N G S E X A N D G E N D E R I D E N T I T I E S 183

upheld a California medical insurance program that excluded preg-
nancy66 and in 1976 it upheld similar pregnancy exclusions in private
insurance plans in General Electric Co. v. Gilbert. In both cases,
the court took the physiology of non-pregnant persons as its standard
for normal conditions and saw pregnancy as an ˜˜additional risk.™™67
Insurance companies, it said, had leeway in deciding which additional
risks they were willing to cover. Moreover these risks could legiti-
mately include such procedures as vasectomies and prostatectomies
without also including pregnancy. Feminists protested, arguing that
allowing policies to exclude coverage for conditions related to preg-
nancy failed to acknowledge facts of biology unique to women and
therefore also failed to provide sufficient protection for women in the
workplace.68 Particularly outrageous, these feminists said, was the
comparison of pregnant and non-pregnant persons for clearly only
women can be pregnant persons.
The Pregnancy Discrimination Act was a response to this out-
rage. According to the law, ˜˜women affected by pregnancy, childbirth,
and related medical conditions shall be treated the same as other
persons not so affected but similar in their ability or inability to
work.™™69 In 1987, the court gave its interpretation of this law in uphold-
ing a California statue that required employers to give pregnant women
reasonable leaves of absence but that did not stipulate such leave for
others. Here it said that the intent of the Pregnancy Discrimination Act
was to guarantee women™s right ˜˜to participate fully and equally in the
workforce.™™70 For many feminists this decision corrected the 1974
and 1976 decisions. It singled out women for special treatment and it
established conditions that would allow women to compete with men

Geduldig v. Aiello 417 US 484, 497 n. 20 (1974).
General Electric Co. v. Gilbert 429 US 125 (1976).
See Deborah L. Rhode, Justice and Gender: Sex Discrimination and the Law
(Cambridge, MA: Harvard University Press, 1989), p. 117.
See Rhode, Justice and Gender, p. 119.
California Federal Savings and Loan Association v. Guerra 758 F2d 390 (CA 1985)
Also see Rhode, Justice and Gender, p. 120.
184 A F T E R I D E N T I T Y

on an equal footing in the workplace.71 In fact, in California, pregnant
women were not only to be treated in the same way as ˜˜other persons
not so affected but similar in their ability or inability to work;™™ they
were to be treated better.
Yet, for precisely this reason, the salutary effects of the law are
less than obvious. By singling certain job holders out as women and by
allowing them to be treated differently than others, the law suggests
that women require special rights and accommodations in order to
hold jobs others can hold without them. Hiring them can seem likely
to employers to be more expensive than hiring others and, worse,
women can seem to be constitutionally unsuited to responsible work-
ing lives.72 Hence, the better way to accommodate pregnancy and
working is to regard reproduction and child-rearing in ways that are
neutral with regard to identities as men or women. One can equate
absences from work due to pregnancy with absences from work for
other legitimate reasons and insist through such legislation as the
Family and Medical Leave Act that these reasons include emergencies
connected to workers™ family lives. Further, rather than arguing for
maternal leaves and reinforcing the idea that raising children is a
female job, one can argue for and support parental leaves that are
neutral with regard to whether the parent is male or female.73 Indeed,
it is possible to ask just how understanding workers as women is
meant to be relevant to pregnancy or child-rearing. Pregnancy is a
condition. Given its current essentiality to the reproduction of the
species, we can surely argue that it should be accommodated in social,
political, and economic life, whoever undertakes it: whether a
woman, an opera buff, or Matt Califia-Rice. By the same token, raising

See Marjorie Jacobson, ˜˜Pregnancy and Employment: Three Approaches to Equal
Opportunity,™™ Boston University Law Review, 68, 1988, pp. 1023“1045.
See, for example, Wendy Williams, ˜˜Equality™s Riddle: Pregnancy and the Equal
Treatment/Special Treatment Debate,™™ New York University Review of Law and
Social Change, 13, 1983, pp. 325“380.
Iris Marion Young disagrees but usefully surveys the 1980s feminist debate in
Justice and the Politics of Difference (Princeton, NJ: Princeton University Press,
1990), pp. 175“178.
R E T H I N K I N G S E X A N D G E N D E R I D E N T I T I E S 185

children who are both physically and psychologically healthy would
seem to be a necessity for any society interested in its reproduction
and long-term future. For this reason, we can demand accommoda-
tions that allow for strong and viable families. Neither pregnancy nor
child-rearing, however, needs to be understood in sex and gender
terms. Instead, those who are pregnant and those who are raising
children are adequately understood as, respectively, pregnant people
and parents. An employer who understands a pregnant employee as a
woman is thus engaged in sex and gender profiling in just the way that
the police officer who understands a person as a black or Hispanic is
engaged in racial profiling. If the latter identification fails to contrib-
ute to fighting crime, the former fails to contribute to questions of
worker productivity or parental leave. Why not equally irrelevantly
understand a worker as an Episcopalian?
Riley and Scott are therefore justified in their suspicion of ˜˜the
annoyingly separable group ˜women workers™.™™ Still, the answer to
the question as to when we are to be women workers and when we
are not depends not on strategy, but on context. We are workers at
work, not women. Understanding individuals at work as women is
tantamount to understanding the devil in Damn Yankees! as Milton™s
Satan. Neither allows for an integration of part and whole.
As in the case of race, however, there is a caveat to this analysis
based on the length of history for which racial, sex, and gender iden-
tities have been mistakenly found in contexts in which they make
no sense. Thus, we might insist on identities as women in order to
assess progress in overcoming disparities in income, wealth, and
power that were themselves caused by misunderstanding individuals
as women in contexts in which these identities could not be intelli-
gibly integrated. Disparities are particularly clear in the case of
income. Historically, working women were segregated into jobs that
paid less well than men™s jobs and disparities remain between tradi-
tional women™s work such as nursing and traditional men™s work such
as truck driving. Women also continue often to be paid less well than
men doing the same job. Because women typically earn less money
186 A F T E R I D E N T I T Y

than men at every stage of their working lives, these disparities cannot
be explained by pointing to hours or days off work spent fulfilling
family responsibilities. Actually, according to Vicki Schulz, even
in that part of their working life in which women have children at
home, they do not take a great deal of time off. Women with pre-school
children work as hard as men, if not as hard as women without pre-
school children.74 These disparities in income render it excusable to
understand individuals as women for the purposes of analyzing and
correcting the inequities that issue from the historical use of the
identification as women, just as it is excusable to understand individ-
uals as blacks for the purposes of analyzing and correcting inequities
that issue from the historical use of the identification as blacks or
African Americans. Yet, the excuse does not mean that it is intelli-
gible to understand people as women in any and every context. We can
also hope that the historical after-effects that excuse the understand-
ing of individuals as women in the context of social justice issues will
not always excuse it. After all, they rest on mistaking workers, citi-
zens, parents, and the like for women.
To be sure, a caveat to this analysis recognizes that some indi-
viduals regard pregnancy and childbirth as the defining moments of
their lives, as the moments that provide the framework for the rest of
their lives and hence offer them, and perhaps others, a good perspec-
tive for understanding who they are. Defining moments for other
people might be different, however: a stint of duty in Vietnam, the
death of a parent, a particular career choice, and so on. The common
characteristic of these moments, however, is that their meaning is
individual rather than social. I may most often present myself as Irish,
a mother, or a baseball fan. Where one of these identities provides
the shape of my life, the identity may define me for others as well, at
least for the most part. Nevertheless, not all those with Irish ancestry,
children, or season tickets to the Red Sox need to understand

Vicki Schulz, ˜˜Life™s Work,™™ Columbia Law Review, 100 (7), 2002, p. 1986.
R E T H I N K I N G S E X A N D G E N D E R I D E N T I T I E S 187

themselves or present themselves to others as Irish, parents, or fans.
The same holds for identities as women.
These considerations suggest that understandings and self-
understandings as men and women are limited to the same conditions
as understandings and self-understandings as blacks, whites, Asians,
Latinos, or Latinas. They are incidental and recreational in the way
that our understandings of one another as sports fans are; they are
ceremonial in the way that our understandings of one another as
Irish Americans are, and they are restricted in the way that our under-
standings of one another as siblings are. Just as one might understand
oneself or others as Red Sox fans during the World Series, one might
understand one™s infant child as a girl in giving her a name, for exam-
ple, or painting her room. And just as one might wear green on
St. Patrick™s Day to indicate that one is Irish, one might wear a dress
or a skirt on certain occasions to indicate that one is a woman. One
might also intelligibly understand individuals as males and females in
that context in which procreation is a possibility. While reproduction
takes place in contexts other than heterosexual intercourse, hetero-
sexual intercourse remains one route to it. Hence, one might profit-
ably understand someone else in sex and gender terms in a context in
which one needs to know what to do in order either to avoid or to
encourage egg fertilization.
The coherence of understanding others as men or women in
the context of procreation is often taken as a justification for restrict-
ing marriage to unions between men and women. In chapter 6, I want
to see if this link is hermeneutically justified and I also want to
consider the uses of identities as men and women in the military.
Marriage, the military, and

The hermeneutic conditions of sex and gender identities mean that
they are intelligible ways of understanding who we are only under
certain conditions with regard to specific interpretive wholes. Hence,
individuals are men and women in no more or less incidental or
unrestricted a way than they are blacks, whites, athletes, or scholars.
Acknowledging the incidental character of Irish American identities
in the United States went hand in hand with recognizing their lack of
significance for social institutions and practices. Sex and gender iden-
tities, however, continue to possess significance for and within at least
two influential social institutions: the armed forces and civil mar-
riage. Eligibility for service in the military is still understood in
terms of sex and gender insofar as men must register for the draft
while women must not. Since 1940, however, public opinion has
favored drafting women when men are drafted and even to many of
those who support women™s exemption, the justification for the
exemption is less than compelling.1 What has been thought to be
more compelling is an understanding of individuals as men and
women for purposes of limiting service in the military to heterosex-
uals. Since heterosexuals are those who engage in sexual activity with
individuals who possess a different sex and gender identity from their
own, the armed services must identify their service members and
recruits in sex and gender terms. A similar understanding of individ-
uals holds for the institution of civil marriage. The federal Defense of
Marriage Act and statutes in many states understand marriage as the
union precisely of one man and one woman. Racial understandings of

See M. C. Devilbiss, Women and Military Service: A History, Analysis and Overview
of Key Issues (Maxwell Air Force Base, Alabama, AL: Air University Press, 1990),
p. 56.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 189

participants in civil marriage or the armed services no longer retain
any legitimacy. The question I want to ask in this chapter is whether
sex and gender understandings make any sense in the context of
marriage or the military.
Asking this question is not the same as asking whether marriage
or the military are institutions we should value or try to preserve.
Claudia Card compares the struggles for the right of gays and lesbians
to marry (although not to join the military2) with a hypothetical
struggle on the part of a certain group to own slaves if the group had
been arbitrarily prohibited from doing so.3 She thinks that, like slav-
ery, marriage, ˜˜is a deeply flawed institution.™™ Hence, ˜˜even though it is a
special injustice to exclude lesbians and gay men arbitrarily from partic-
ipating in it, it would not necessarily advance the case of justice . . .
to remove the special injustice of discrimination.™™4 Nevertheless, it is
possible to be unconcerned with preserving the institutions of either
marriage or the armed services and still be concerned with the ques-
tion of whether the participants in them are intelligible as men and
women. For, if we can plausibly understand the participants in the
institutions in these ways then the social influence of the institutions
suggests that sex and gender identities will also maintain a more
central role in our understandings of one another than I have argued
that their partial and non-exclusive status warrants. Conversely, if it
turns out that the participants in marriage and the military cannot
plausibly be understood in sex and gender terms, then reinterpreting
these participants should help de-center sex and gender identities in
general. The question thus remains as to whether we can plausibly
understand those who want to marry or those who join the military as
men and women.

See Claudia Card, ˜˜The Military Ban and the ROTC: A Study in Closeting,™™ in
Claudia Card, Lesbian Choices (New York: Columbia University Press, 1995),
pp. 169“193.
Claudia Card, ˜˜Against Marriage and Motherhood,™™ Hypatia: A Journal of Feminist
Philosophy, 11 (3), 1996, download from Genderwatch, http://proquest.umi.com.
Card, ˜˜Against Marriage and Motherhood,™™ download, p. 3.
190 A F T E R I D E N T I T Y

Answering this question will depend upon how we understand
the institutions in which these individuals seek to participate. These
institutions form the whole for which men and women are meant to
be the parts. Does an understanding of these parts as men and women
allow for an integration of part and whole? How shall we understand
the wholes or contexts that marriage and the military form? I shall
begin with an attempt to understand what marriage is.

Defenders of what is sometimes called traditional marriage define
civil marriage as the union of one man and one woman. According to
this definition, sex and gender identities are crucial to the meaning of
civil marriage because civil marriage is inseparably tied to procreation
and the raising of children. This tie does not depend on whether a
particular marriage actually issues in children. Nor does it matter that
a relationship between two men or two women might include them.
Rather, civil marriage is an institution set up to protect and nurture
the children that the sexual intercourse between a man and a woman
might produce and this purposive structure for the institution holds
whether or not the intercourse was intended to or does produce them.
In this view, then, there is a crucial difference between different-sex
unions and same-sex unions since the former has the capacity for
unintended consequences in pregnancy and childbirth while the latter
does not. Where such consequences ensue, children need the stability
of a married mother and father. In particular, they need an institution
geared towards binding fathers to the families they have helped to
create. The New York Court of Appeals affirmed this sort of analysis
in refusing to grant same-sex couples a right to marry under the New
York state constitution in Hernandez v. Robles:
Heterosexual intercourse has a natural tendency to lead to the birth
of children; homosexual intercourse does not . . . The Legislature . . .
could find that an important function of marriage is to create
more stability and permanence in the relationships that cause
children to be born. It thus could choose to offer an inducement “ in
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 191

the form of marriage and its attendant benefits “ to opposite-sex
couples who make a solemn, long-term commitment to each

While mothers typically stay with the children to whom they
have given birth, without the inducement of the benefits of marriage,
defenders of restricting marriage to opposite-sex couples fear that men
will not. ˜˜Marriage is the way every society attempts . . . to give every
child the father his or heart desires,™™ Maggie Gallagher insists.6 To be
sure, one might wonder why extending the benefits of marriage to
same-sex couples should affect the value of the benefits and induce-
ments for opposite-sex couples. But defenders of a ban on marriage
between same-sex couples claim that such an extension would.
Gallagher writes, ˜˜Good fathers are made, not born. When family and
sexual norms are weakened, it is . . . children™s access to fathers . . . that
is put at risk.™™7 How establishing marriages between same-sex couples
would weaken family and sexual norms, however, is never made clear.
Gallagher and others also maintain that opposite sexes are
important to raising children because their qualities complement
one another. Children, they say, are best raised in intact nuclear
families with female mothers and male fathers whose inherent qual-
ities as men and women balance one another.8 Moreover, they insist
that there is too little evidence to determine the long-term psycho-
logical health and well-being of children who are raised in families
headed by two men or two women.9 Again, New York™s highest court

Hernandez v. Robles 7 NY 3d 338 (2006), Lexis pagination, p. 6.
Maggie Gallagher, ˜˜Normal Marriage: Two Views,™™ in Lynn Wardle et al., eds.,
Marriage and Same-Sex Unions: A Debate (Westport, CT: Praeger, 2003), p. 18.
Ibid., p. 17.
See, for example, Dwight D. Duncan, ˜˜The Federal Marriage Amendment and Rule
by Judges,™™ Harvard Journal of Law and Public Policy, 27, 2004; Teresa Stanton
Collett, ˜˜Recognizing Same-Sex Marriage: Asking for the Impossible?,™™ The
Catholic University Law Review, 47, 1998, pp. 1262“1263 and both David Organ
Coolidge and George Dent at ˜˜The University of Chicago Law School Roundtable,™™ 7
University of Chicago Law School Roundtable, 2000, pp. 41, 47.
See Judge Cordy™s dissent in Goodridge v. Department of Public Health 440 Mass.
309 (2003).
192 A F T E R I D E N T I T Y

agrees: ˜˜Intuition and experience suggest that a child benefits from
having before his or her eyes, every day, living models of what both a
man and a woman are like.™™10 Further, ˜˜Social science literature
reporting studies of same-sex parents and their children . . . do not
establish beyond doubt that children fare equally well in same-sex and
opposite-sex households. What they show, at most, is that rather
limited observation has detected no marked differences. More defini-
tive results could hardly be expected, for until recently few children
have been raised in same-sex households, and there has not been
enough time to study the long-term results of such child-rearing.™™11
Yet, what are the differences between men and women that are
meant to provide for the psychological health of children? Who are the
living models of what both a man and a woman are like? What are men
and women like? George Dent admits that ˜˜No law forbids an effemi-
nate man to marry a masculine woman.™™12 But if so, why can an
effeminate man not marry a masculine man or an effeminate woman
not marry a masculine woman? Indeed, no law forbids an effeminate
man from marrying an effeminate woman or a masculine man from
marrying a masculine woman. So what are the complementary qual-
ities that make a difference to raising children? Since most defenders
of traditional marriage concede that men and women can take non-
traditional roles in a marriage, the issue is even more perplexing. If
different sexed members of a couple can both be effeminate in their
attitudes and behavior, whatever this idea of effeminacy is supposed to
signify, and if different sexed members can take on whatever roles in the
marriage that work best for them, why is this not the case for members
of an identically sexed couple? Indeed, why do we need the identities of
different-sexed or same-sexed at all? Is the point not simply that child-
ren do well if their parents complement each other in certain ways?
As thus far stated, the link between marriage and the necessity
of opposite-sex participants is unclear for other reasons as well. In the

10 11
Hernandez v. Robles, p. 359. Hernandez v. Robles, p. 360.
˜˜The University of Chicago Law School Roundtable,™™ p. 47.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 193

first place, we need not understand pregnant individuals as pregnant
women. In the second place, if we avoid talking about pregnant
women and refer to pregnant people instead, it is still not clear that
it is possible to argue that the point of marriage is to compensate for
the vulnerability of children and people who can become pregnant.
Were we to do so, how would we justify the legality of marriages to
sterile partners or older partners who cannot become pregnant?
Moreover, even if marriage were first established to compensate for
the vulnerability caused by pregnancy, it is surely possible to ask
whether its meaning might not develop with the meaning of other
social and historical practices and institutions. To the extent that, as a
social institution, marriage participates in the histories of the soci-
eties of which it is a part, it would be odd to think that its meaning
must be limited to the intentions of those who first established it.
Making this assumption would be as odd, in fact, as it would be to
think that the meaning of a text must be limited to its author™s
intentions. Just as texts take on new meanings from new perspectives
as part of different interpretive traditions, so too, surely, does mar-
riage. Finally, if the point of marriage were really to compensate for
pregnancy, why would a better strategy for a person (married or
unmarried) who found herself pregnant be immediately to have sexual
intercourse with as many men as possible in the hope that at least one
of them would assume that the child was his and contribute to its
support? Among the Canela of Brazil, ˜˜all men with whom a woman
had sex when she became pregnant, and including the period just prior
to when she was detectably pregnant, are expected to provide food for
her child. Hence, it is scarcely surprising that just as soon as she
suspects she is pregnant, a Canela woman, like a groupie after a rock
star, attempts to seduce the tribe™s best hunters and fishermen.™™13
Of course, if the Canela strategy is a plausible one, we might
agree with those who trace the roots of marriage to the need to combat

See Sarah Blaffer Hrdy, Mother Nature: Maternal Instincts and How They Shape the
Human Species (New York: Ballantine Books, 1999), p. 247.
194 A F T E R I D E N T I T Y

such strategies. Rather than a mechanism for protecting women,
marriage is a mechanism to control women and their sexuality.
Through marriage, a man prohibits his wife from sleeping with multi-
ple partners and thereby assures himself that the children he nurtures
and supports are his own.14 Yet, in this case, we would expect defend-
ers of limiting marriage to opposite-sex partners to applaud weddings
between same-sex partners since these have the potential to help in
this endeavor. The more lesbians there are who are engaged in state-
sanctioned monogamous relationships, the fewer there are whose
sexuality men need to control. Moreover, the more gay men there
are who are engaged in state-sanctioned monogamous relationships,
the fewer there are who are available to muddy the lines of descent.
There is, however, another approach to defending the restriction
of marriage to one man and one woman, that of ˜˜natural law,™™ which
tries to make the connection between marriage, procreation, sex and,
gender tighter and less instrumental. Robert P. George calls marriage
˜˜a two-in-one-flesh communion of persons that is consummated and
actualized by acts that are procreative in type, whether or not they are
procreative in effect (or are motivated, even in part, by a desire to
procreate).™™15 By ˜˜acts that are procreative in type,™™ George means
the sort of acts that can create children. Such acts can be performed
by sterile different-sexed couples and by older different-sexed couples
for whom the creation of children is no longer possible. In these cases,
the acts remain the type of act by which children can be created in
other circumstances, whereas the acts are not of a type that can be
performed by men with men or by women with women. Moreover, for
George and others in the natural-law tradition, the creation of children
is not instrumentally related to marital acts but is, instead, a gift that

See Carmen Shalev, Birth Power: The Case for Surrogacy (New Haven, CT: Yale
University Press, 1989), esp. chapter 1.
Robert P. George, ˜˜Neutrality, Equality and ˜Same-Sex Marriage™,™™ in Warole et al.,
eds., Marriage and Same-Sex Unions, pp. 120“121. Also see John Finnis, ˜˜Law,
Morality and ˜Sexual Orientation™,™™ The Notre Dame Law Review, 69, 1994,
pp. 1049“1074.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 195

supervenes on them. As George puts the point, acts that are procre-
ative in type ˜˜belong to the only class of acts by which children can
come into being, not as ˜products™ that their parents choose to ˜make,™
but rather as perfective participants in the organic community (i.e. the
family) that is established by their parents™ marriage.™™16
According to this understanding of civil marriage, then, mar-
riage is not tied to procreation and hence to different-sexed couples as
a means of tying fathers to families. Rather, it is procreative because it
has unity or a two-in-one-flesh communion at its foundation and
because this unity rests on acts that are procreative in type on which
children may supervene. George™s grounds for this claim are biolog-
ical: in the kind of act in which reproduction is possible, a couple
becomes a single organism. A mated pair of one man and one woman is
necessary to reproduction and for purposes of reproduction, then, the
pair forms one organism. Because marriage is a two-in-one-flesh com-
munion and because in acts that are reproductive a man and a woman
form a single organism, it is only such acts that make marriage the
˜˜unitive™™ value it is. Two additional points follow for George. First,
the value of acts that are procreative in type is irrespective of the
pleasure they may or may not involve.17 Second, no acts that are not
procreative in type are, properly speaking, marital ones because they
cannot lead to the same unity.18 For George, masturbation and
sodomy are valueless whether they occur outside of marriage or inside
of it since, in both cases, they can serve only instrumental ends of
sensory pleasure, friendship, or the like. He also thinks it is a mistake
to conceive of genitalia as mere ˜˜plumbing™™ and of bodies in general as
a means to extrinsic ends. Rather bodies are part of the ˜˜personal

George, ˜˜Neutrality, Equality and ˜Same-Sex Marriage™,™™ p. 123.
See Robert P. George and Gerard V. Bradley, ˜˜Marriage and the Liberal Imagination,™™
Georgetown Law Journal, 84, 1995, pp. 308“310.
Hadley Arkes goes further, insisting that they are not sexual acts at all. Indeed they
˜˜may be taken as minor burlesques or even mockeries of the true thing™™ (Hadley
Arkes, ˜˜Questions of Principle, Not Predictions: A Reply to Macedo,™™ Georgetown
Law Journal, 84, 1995, p. 323).
196 A F T E R I D E N T I T Y

reality of human beings. To treat them as instruments for personal
pleasure is to destroy the integrity of body, mind and spirit.™™19
The natural-law account of marriage suggests that there is a cost
to undoing the link between marriage and acts that are procreative in
type: namely, erasing the line marriage establishes between commu-
nion and any other sensory experience. If marriage is no longer con-
nected to the one-flesh union of two individuals possible only in acts
that are procreative in type, and hence possible only for a different-
sexed couple, then there is no reason not to open the institution, not
only to same-sex couples, but to bigamists, polygamists, and others.20
As Hadley Arkes asks, ˜˜If the notion of marriage were separated from
the teleology of the body “ if it were separated from the fact that only
two people, a man and a woman, could beget a child “ then on what
ground of principle could the law confine marriage to ˜couples?™™™21
Marriage becomes an institution open to any group of people inter-
ested in an intimate relationship involving sex, friendship, and the
hope of self-fulfillment. ˜˜While we are at it,™™ Arkes continues, ˜˜we
might ask how the law, on these new premises, rules out marriage
between parents and their children.™™22 What is lost, according to
George, in provoking a ˜˜redefinition™™ of marriage in this way is a
basic element of morality. Over time marriage will not only lose its
capacity to provide security for children but will also lose its value as a
human good. As George writes:

The law . . . will teach either that marriage is an intrinsic human
good that people can choose to participate in, but whose contours
people cannot make and remake at will . . . or the law will teach
that marriage is a mere convention that is malleable in such a way
that individuals, couples, or, indeed, groups can choose to make it
whatever suits their desires, interests, subjective goals and so on.

See Arkes, ˜˜Marriage and the Liberal Imagination,™™ p. 314.
See Richard G. Wilkins, ˜˜The Constitutionality of Legal Preferences for
Heterosexual Marriage,™™ in Warole et al., eds., Marriage and Same-Sex Unions,
p. 233.
21 22
Arkes, ˜˜Questions of Principle,™™ p. 325, emphasis in the original. Ibid., p. 325.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 197

The result . . . will be the development of practices and ideologies
that truly do tend to undermine the sound understanding and prac-
tice of marriage.23

George is aware that the philosophical and theological roots of
this understanding of marriage might seem to preclude its relevance to
the on-going legal debates over civil marriage between same-sex part-
ners. To the extent that the natural-law account is an essentially
religious one, it cannot constitutionally be imposed on those who do
not share it. Yet, George insists that the law is not and cannot remain
neutral with regard to marriage. Laws already underwrite the ethical
value of mutual commitment in marriage, for example, by establish-
ing legal conditions on and procedures for leaving it. George and other
natural lawyers suggest that the same holds for its value as a two-in-
one-flesh communion. Like mutual commitment, it is a good that
requires cultural recognition and institutional support:

The law would embody a lie (and a damaging one insofar as it truly
would contribute to the undermining of the sound understanding
and practice of marriage in a culture) if it were to pretend that a
marital relationship could be formed on the basis of, and integrated
around, sodomitical or other intrinsically nonmarital (and, as such,
self-alienating) sex acts.

What are we to make of this analysis of the necessity to civil
marriage that its participants be defined as one man and one woman?
George suggests that his account is the only ˜˜sound understanding and
practice of marriage.™™ Is this suggestion plausible? If we look at
American constitutional history, the answer seems to be ˜˜no.™™ Indeed,
George™s account is arguably more hostile to our historical understand-
ing of traditional marriage in the United States than is marriage
between same-sex partners. The natural-law account of marriage
emphasizes the unique ˜˜unitive™™ value of acts procreative in type. Yet

George, ˜˜Neutrality, Equality and ˜Same-Sex Marriage™,™™ p. 128.
198 A F T E R I D E N T I T Y

given the American tradition of pluralism in the pursuit of individual
goods, it is surely non-traditional to dismiss other routes to union or
other values a particular marriage might have for its members. Even
more non-traditional would be an attempt to use the law to impose one
way of valuing marriage or one route to that value. George™s claim that
legally enforceable exit conditions on marriage already ground its par-
ticular ethical values does not make his account more plausible, for if
we can understand marriage differently than he does, we will also
understand the point of its exit conditions differently as well.
Is there, then, an alternative to George™s understanding of mar-
riage? Suppose we take the legal history of civil marriage in the United
States as a key to its meaning. The instrumental account of this mean-
ing that ties marriage to procreation and the raising of children cannot
make sense out of the legitimacy of a myriad of marriages, including
those that do not issue in children. The natural-law account does not
make sense in light of an American commitment to the plurality of
conceptions of the good. How, then, might we understand marriage?
Moreover, how might we understand the right to marry? What is the
meaning of American actions and legal decisions in regard to both?

˜˜ F O R M A L A N D R I G H T F U L ™™ M A R R I A G E
In the early nineteenth century, one of the ways in which the former
American colonies tried to establish their distance from England was
to move away from the state regulation of marriage.24 Americans,
excluding slaves, entered marriage in various ways, through marrying
each other on their own, without the presence of church or state
officials, and common-law marriage, as well as by secular and church
authorities, if they could be found.25 Central to marriages between
non-slaves was a couple™s decision to live as a married couple and to

See Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth
Century America (Chapel Hill, NC: University of North Carolina Press, 1985),
pp. 69“71.
See Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge,
MA, Harvard University Press, 2000), pp. 30“31.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 199

establish a joint household, followed by their community™s acknowl-
edgment of them as a married unit. What distinguished slave mar-
riages from non-slave marriages, then, was not the regulation of the
state before the wedding but the legal and community recognition of
the union after people ˜˜took up™™ with one another. Although some
slave owners allowed slaves to take part in wedding ceremonies such
as ˜˜jumping the broomstick,™™ these ceremonies had no binding con-
sequences. Husbands, wives, and children might live apart on adjacent
farms and see each other only at their owner™s discretion.26 They
might be sold away from one another at any time and, in any case,
they had no control over the ways they or their wives were sexually
used by owners or overseers. For these reasons, writing for the North
Carolina Supreme Court in 1838, Thomas Ruffin denied that slaves
could be united in ˜˜rightful and formal marriage . . . Concubinage,
which is voluntary on the part of the slaves, and permissive on that of
the master . . . is the relation, to which these people have ever been
practically restricted, and with which alone, perhaps, their condition
is compatible.™™27 A slave preacher was more succinct. Typically he
ended his ˜˜wedding™™ ceremonies: ˜˜Till death or buckra part you.™™28
After the Civil War, slave unions could finally acquire official
recognition and slaves took advantage of the opportunity in droves.29
Why? What is important about the legal acknowledgment of one™s
intimate relation to someone else? What does the recognition of a
couple as legally married do for that couple in the United States?
Obviously, it helps to express their mutual love for, and commitment
to, one another but commitment ceremonies without the authority of
the state can arguably do the same. If a wedding ceremony is a public
expression of love, why need the state be involved at all? Moreover,
while federal law includes 1,049 places where civil marriage confers a

See Margaret A. Burnham, ˜˜An Impossible Marriage: Slave Law and Family Law,™™
Law and Inequality, 5, 1987, p. 196.
27 28
Cott, Public Vows, p. 34. Grossberg, Governing the Hearth, p. 132.
Cott, Public Vows, p. 88.
200 A F T E R I D E N T I T Y

special status, right, or benefit on those who participate in it,30 two
unmarried but committed partners might work out a series of con-
tracts with one another to enjoy most if not all of these rights and
benefits. Given adequate financial means, they could adopt one anoth-
er™s children to obtain the rights of parents; they could prepare wills
and health care proxies designating each other as heirs and responsible
parties, and they could work out contractual relations to govern their
shared finances. Although the possibility of joint insurance policies
and health care benefits through one partner™s employment would
vary according to state and employer, individuals could, again given
the financial means, purchase separate insurance policies and health
insurance for dependents who did not qualify. In splitting up, cohab-
iting couples could not avail themselves of the laws of divorce
with regard to child support issues and the division of property.
Nevertheless, they could employ principles of equity jurisdiction.
What, then, is so special about civil marriage that many former slaves
would travel long distances to have their marriages made legal? Why
are many same-sex couples interested in civil marriages as well?
Civil marriage can be understood as an institution that, barring
violence, creates a zone of privacy for intimate choices. In the con-
temporary United States legalized marriages grant couples two capaci-
ties: they can pursue those behaviors that in their estimation best
solidify their particular bond and, at the same time, they can present
themselves to the public world in a way that compels official recog-
nition of their legitimate investment in one another™s lives, in what-
ever way they conduct their particular relationship. Married couples
thus possess a kind of immediate legitimacy that slaves were forced to
do without and that even a set of legal documents cannot duplicate. If
one is married, one is automatically the parent of the children born
into the marriage; one is the default heir of one™s spouse unless other
arrangements have been made; one is also the default person in

See Evan Wolfson, ˜˜All Together Now,™™ in Warole et al., eds., Marriage and Same-
Sex Unions, p. 4.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 201

emergencies where one™s identity as someone™s spouse permits imme-
diate access to police officers, doctors, and the like. To be sure, cohab-
iting couples can no longer be sold away from one another as slave
couples could be. Nevertheless, marriage provides a kind of shorthand
communication of the legitimacy of one™s involvement and concern in
someone else™s life and affairs, and it is this shorthand that is not
available to those who simply cohabit.
The 1930s dispute over Abraham Lincoln Erlanger™s estate is a
case in point.31 Erlanger and a woman who called herself Charlotte
Fixel-Erlanger had been living together for ten years when Erlanger
died in 1930, a multi-millionaire. In deciding whether Fixel-Erlanger
was entitled to inherit his estate, the court heard testimony from
149 witnesses, examined 834 evidentiary exhibits, and reviewed a
6,965-page record.32 Witnesses recounted private conversations and
described how Fixel-Erlanger helped the frail Erlanger to eat; they
detailed walks the couple had taken and commented on their enter-
tainment style. Fixel-Erlanger™s lawyer even entered Fixel-Erlanger™s
credit card receipts into evidence and produced evidence of her regu-
larly selecting Erlanger™s suits. The details of the Erlangers™ private life
served to convince the court that their relationship merited recogni-
tion as a common-law marriage. Had the couple been formally wed to
one another before Erlanger™s death, however, Fixel-Erlanger would
have been entitled to an inheritance no matter how the couple had
behaved towards one another and the details of their relationship
would have escaped public scrutiny.
William H. Hohengarten uses the New York case of Braschi v.
Stahl Associates Co. to make a similar point about privacy and pub-
licity.33 The case concerned the question of whether Miguel Braschi
could be evicted from a rent-controlled apartment after the death of his

In re Estate of Erlanger 145 Msic 1 (NY 1932). Also see Ariela R. Dubler, ˜˜Wifely
Behavior: A Legal History of Acting Married,™™ Columbia Law Review, 100,
pp. 957“1021.
Dubler, ˜˜Wifely Behavior,™™ p. 992.
William M. Hohengarten, ˜˜Same-Sex Marriage and the Right of Privacy,™™ Yale Law
Journal, 103 (6), 1994.
202 A F T E R I D E N T I T Y

partner, to whom he was not married. In deciding that he had a right to
remain in the apartment, the court determined that ˜˜in the context of
eviction, a . . . realistic and . . . valid view of a family includes two
adult lifetime partners whose relationship is long term and character-
ized by an emotional and financial commitment and interdepend-
ence.™™34 At least for purposes of rent-controlled apartments, then,
legal marriage is not a prerequisite to official recognition of a relation-
ship. At the same time, the court suggested an exacting set of tests for
deciding whether a given non-marital relationship met its standard for
a family. These tests included assessments of ˜˜the exclusivity and
longevity of the relationship, the level of emotional and financial
commitment, the manner in which the parties have conducted their
everyday lives and held themselves out to society, and the reliance
placed upon one another for daily family services.™™ The judges conceded
that ˜˜the presence or absence of one or more of [these factors] is not
dispositive since it is the totality of the relationship which should . . .
control.™™ Nevertheless, evaluating the ˜˜totality of the relationship™™
involved estimating ˜˜the dedication, caring and self-sacrifice of the
parties.™™35 In contrast, if a couple is married, the question of their
dedication to one another, caring and self-sacrifice is neither a neces-
sary nor a legitimate area of inquiry. It is enough that they are married.
At least part of the reason, then, that civil marriage is an attrac-
tive option for many couples is that it is able to offer an immediate and
no-questions-asked mark of legitimacy. Take as a point of compari-
son, the affidavits of plaintiffs in Hernandez v. Robles.36 Mary Jo
Kennedy writes that when her partner was rushed to the hospital for
emergency surgery, they had first to ˜˜fill out revised forms to make
sure that [Kennedy] could consent to treatment for her if necessary.™™37
When his partner was dying Nevin Cohen ˜˜was not always given the
same information or asked the same decision-making questions in a

34 35
543 NE2d 49 (1989), p. 54. 543 NE2d 49 (1989), p. 55.
Available at lambdalegal.org.
Hernandez v. Robles: Memorandum of Law in Support of Plaintiff™s Motion for
Summary Judgment, p. 16, n. 12, available at lambdalegal.org.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 203

way a spouse would be.™™38 Raising children in cohabiting households
also requires a level of state intrusion not required for married couples.
Freeman-Tweed writes ˜˜When our son . . . was born, I was the first
person to hold him. But it would take over two years, during which
Lauren and I had to submit to intrusive interviews and background
checks before I could legally adopt him and have the rights that other
parents have automatically.™™39 Her partner Lauren continues, ˜˜We
hired an attorney and paid her over $800 to prepare wills, health care
proxies and guardianship papers . . . We had to have friends write
letters on our behalf . . . we had to be fingerprinted; and we had to
have a New York State probation officer come into our home to decide
if it was ˜˜a suitable environment.™™40
In avoiding the need for these sorts of inquiries and inspections
civil marriage permits an off-loading of questions into the details of
private lives onto a common coinage that compels public recognition
and respect. It confers onto committed couples public rights to an
immediate and no-questions-asked involvement in one another™s
lives and with regard to whatever responsibilities and relationships
these lives entail. Thus, whereas George endorses as marriages only
those unions that achieve a two-in-one-flesh communion, the differ-
ence between slave and non-slave marriages and between marriage
and cohabitation suggests a different understanding. Whether married
couples are friends, enemies, lovers, or the particular kind of lover
George supports, the fact that they are married precludes most inqui-
ries by public authorities. The law is meant to protect individuals
from violence and coercion both inside and outside of marriage.
Nevertheless, civil marriage entails a publicly recognized right to an
involvement in one™s partner™s life and to protection from state infer-
ence into the relationship, short of protecting the individuals within it
from violence and coercion.
To be sure, if this understanding of modern marriage is a plau-
sible one, then it is not an unproblematic institution. Card thinks that

38 39 40
Ibid., p. 16, n. 12. Ibid., p. 16, n. 12. Ibid., p. 16, n. 12.
204 A F T E R I D E N T I T Y

current laws in fact fail to protect spouses, and particularly wives,
from injury and death at the hands of those to whom they are married.
Hence she suggests that the state ought either to get out of the busi-
ness of licensing relationships altogether or to take greater care in
licensing marriages by engaging in more inspections and inquiries of
those who plan to wed. As a society, she writes, we need to think more
carefully about ˜˜the dangers of legally sanctioning the access of one
person to the person and life of another.™™41 The immediate, state-
sanctioned recognition of a right to an involvement in someone
else™s life works two ways, then. On the one hand, it transfers a set
of rights to couples, including the right of immediate access to one™s
spouse and children in emergencies. On the other hand, it allows such
an immediate access to one™s spouse and children that laws against
spousal abuse and child endangerment often come a step too late.
Card and other critics of marriage also argue that in legitimizing
certain relationships, marriage delegitimizes others.42 Certain rela-
tionships have title to a publicly respected zone of privacy while
others do not. Currently precluded from this zone are not only
relationships between same-sex couples, but also, among others, poly-
gamous relationships, incestuous relationships, bigamous relation-
ships, intimate but non-cohabiting relationships, and what might be
called serially non-monogamous relationships in which a person has a
series of intimate relations with others who have intimate relation-
ships of their own but not with one another. Thus if state-licensed
marriages bestow official recognition on certain relationships, we can
ask on which relationships it should it bestow this recognition, and
how. Should these relationships be required to take a certain form?
Should the granting of marriage licenses be contingent on individuals™
passing certain psychological tests designed to measure propensities
towards violence? How should we understand the right to marry and
those who possess it? Put more hermeneutically, what is the meaning

Card, ˜˜Against Marriage and Motherhood,™™ download, p. 6.
See Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of
Queer Life (New York: Free Press, 1999), esp. p. 96.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 205

of the right to marriage? If texts develop their meaning in the course of
their interpretive histories, what is the meaning of the right to mar-
riage as it has developed in our legal history? Is a right to marry held
only by certain individuals with certain identities?

After the Civil War, at the same time that states legalized marriages
between former slaves, many states also passed anti-miscegenation
statutes outlawing marriages between whites and non-whites.
Despite the Fourteenth Amendment such bans were held to be con-
stitutional on the assumption that the amendment dealt only with
civil and political rights, not with ˜˜social equality.™™43 Courts also
upheld the statutes on the basis of nature. In 1871, for example, the
Indiana Supreme Court cited a Pennsylvania case validating racially
segregated railroad cars to make an even stronger case for racially
segregated marriages. The Pennsylvania decision said that ˜˜The fact
of a distribution of men by race and color is as visible in the provi-
dential arrangement of the earth as that of heat and cold.™™44
Consequently, the Indiana court inferred that prohibiting marriage
between those of different races derived not from ˜˜prejudice, nor
caste nor injustice of any kind, but simply to suffer men to follow
the law of races established by the Creator himself.™™45
Following a similar logic, the California legislature passed a law
in 1850 banning legal marriages between whites and Negroes and in
1905 amended the law to add a prohibition on marriages between
whites and mulattoes or Mongolians, by which it meant individuals
with Japanese or Chinese ancestry. In 1933, after the California
Supreme Court upheld the legality of a marriage between a white
and a Filipino, the legislature promptly added ˜˜Malay™™ to its list of
those whites could not wed. However, in 1948, in the case of Perez v.
Sharp, a majority of the California court found that the 1850 statute

Grossberg, Governing the Hearth, p. 137.
The West Chester and Philadelphia Railroad Co. v. Miles 55 Pa. 209 (1867), p. 213.
Ibid., p. 405.
206 A F T E R I D E N T I T Y

and its amendments violated the California constitution. In so doing,
without disputing racial segregation laws then in effect, the court set a
precedent for a line of United States Supreme Court decisions that
linked the right to marry to capacities for choice and consent. Civil
marriage, the California court said, was ˜˜a fundamental right of free
men.™™46 More importantly for our purposes, it was not a right merely
in the abstract; instead the right was one ˜˜to join in marriage with the
person of one™s choice.™™47 This finding served as the basis on which the
court was able both to invalidate a ban on interracial marriages and to
uphold statutes mandating separate facilities, including separate rail-
way cars, for whites and other races. According to the judges, as long as
there was some railroad car one could occupy, it was no impingement
on one™s fundamental rights to be banned from occupying a particular
railroad car. The same did not hold of spouses. The law could not
claim that, as long as there was someone one could marry, it was no
impingement on one™s fundamental rights to be banned from marrying
a particular person. ˜˜Human beings,™™ the opinion said, ˜˜are bereft of
worth and dignity by a doctrine that would make them as interchange-
able as trains.™™48
In 1967, in Loving v. Virginia the United States Supreme Court
finally followed California™s example and invalidated all restrictions
on the right to marry that were based on racial classifications.49 The
state of Virginia had argued that its ban was legitimate since it applied
to whites and non-whites equally. Whites could not marry non-whites
and non-whites could not marry whites. Yet, the court appealed to
˜˜the very heavy burden of justification™™ that it said was ˜˜traditionally
required of state statutes drawn according to race™™ and denied any
˜˜legitimate overriding purpose independent of invidious racial dis-
crimination™™ that could justify classifying participants in marriage
according to race.50 Defenders of limiting the right to marry to oppo-
site-sex partners often appeal to this link to the history of racism to

46 47
Perez v. Sharp 32 Cal. 2d 711 (1948), p. 714. Perez v. Sharp, p. 715.
48 49
Perez v. Sharp, p. 725. Loving v. Virginia 388 US 1 (1976), p. 12.
Loving v. Virginia, p. 10.
M A R R I A G E , T H E M I L I T A R Y , A N D I D E N T I T Y 207

distinguish Loving from current court cases over marriage between
same-sex partners. Indeed, four years after Loving, the Minnesota
Supreme Court upheld Minnesota™s prohibition against such mar-
riages in the face of a Loving-inspired challenge brought by same-sex
partners.51 In Hernandez v. Robles in 2006, the New York court
reiterated what it saw as the narrow racial scope of the Loving ruling:
˜˜Although the Court characterized the right to marry as a ˜choice,™ it
did not articulate [a] broad ˜right to marry the spouse of one™s choice.™™™
Rather, the Court observed that ˜˜the Fourteenth Amendment requires
that the freedom of choice to marry not be restricted by invidious
racial discriminations.™™52
Yet, the subsequent history of Supreme Court marriage cases
belies this narrow reading of Loving. In 1978, Zablocki v. Redhail
extended the right to marry from interracial couples to non-custodial
parents who were too poor to pay to support their children from
previous relationships53 and in 1987, Turner v. Safely extended the
right to prison inmates.54 To be sure, these later decisions focus on the
rights of prison inmates and indigent, non-custodial parents to marry
without specifying whom they have a right to marry. Nonetheless,
unless prison inmates and indigent, non-custodial parents have a right
to marry, a person who wanted to marry a prison inmate or indigent,
non-custodial parent would be deprived of the right to marry a partic-
ular person, the deprivation that Perez said would suppose that people
were ˜˜as interchangeable as trains.™™
Hernandez v. Robles notwithstanding, then, the history of mar-
riage litigation suggests that in the United States the right to marry
has come to mean a right to marry the person of one™s choice as long as
that person consents to do so. Indeed, so fundamental to marriage are
choice and consent that California had to acknowledge their logical
force even under conditions of legally enforced segregation. This free-
dom of choice and consent were first unjustifiably withheld from

51 52
Baker v. Nelson, 291 Minn. 310 (1971). Hernandez v. Robles, p. 371.
53 54
Zablocki v. Redhail 434 US 374 (1978). Turner v. Safely 482 US 78 (1987).
208 A F T E R I D E N T I T Y

slaves, second, unconstitutionally withheld from interracial couples,
third unconstitutionally withheld from prison inmates and, fourth,
unconstitutionally withheld from indigent, non-custodial parents. In
eliminating these restrictions, the principle guiding the development
of marriage law is that people who are free are free to marry whom they
want to marry, provided those whom they want to marry also consent.
In American legal history this understanding of the right to marry has
gradually won out over attempts to tie it to certain sorts of identities.
Although anti-miscegenation bans understood couples in racial terms
and although other regulations stressed identities as prison inmates or
indigent non-custodial parents, in determining that these identities
were irrelevant to the right to marry, legal decisions suggest that the
identities entailed by its meaning are identities as autonomous choos-
ers and consenters.


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