Prop 8 Court Victory: A Reproductive Justice Win Too

Jessica Arons

The widely-celebrated court decision striking down Proposition 8 is important for many reasons, not least because it underscores that reproductive and sexual rights are integrally and intimately linked.

Today, LGBT rights supporters are celebrating a well-deserved victory after Judge Vaughn Walker struck down the discriminatory Proposition 8 ballot initiative that tried to ban gay marriage in California. But Reproductive Justice advocates are celebrating the Perry v. Schwarzenegger ruling right alongside them, and with good reason.

As Shira Saperstein has written:

Reproductive rights are about far more than abortion—they also encompass contraception, adoption, and intimate relationships, including marriage. The ability to manage our fertility through contraception and, when necessary, abortion, enables us to plan our families and to determine whether, when, and with whom to have children. Adoption, too, allows caring adults to become parents and form loving families. And marriage provides legal and social benefits that make it easier to care for one another and to raise children with the security and resources they need to thrive.

These rights are indivisible, and defending them comes not only from a concern for women or for the GLBT community. Reproductive rights are about nothing less than the ability to chart one’s own course in life—to make decisions about love, sex, and family without government interference or discrimination. That ability is central to core American values of freedom, equality, and fairness. It is time for progressives to join together in support of a complete and comprehensive reproductive rights agenda that advances liberty and justice for all.

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Core values of reproductive justice include, among others, the right to make reproductive and sexual decisions, freedom from rigid gender norms, gender equity in all areas of life, and respect for parenting regardless of one’s characteristics.

In his opinion, Judge Vaughn touches on many of these tenets. He makes it clear that decisions about marriage, sex, and procreation may be interrelated but are in no way a precondition for one another:

The state respects an individual’s choice to build a family with another and protects the relationship because it is so central a part of an individual’s life.  See Bowers v Hardwick, 478 US 186, 204-205 (1986) (Blackmun, J, dissenting).

Never has the state inquired into procreative capacity or intent before issuing a marriage license; indeed, a marriage license is more than a license to have procreative sexual intercourse. FF 21. “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Lawrence, 539 US at 567. The Supreme Court recognizes that, wholly apart from procreation, choice and privacy play a pivotal role in the marital relationship. See Griswold, 381 US at 485-486. (emphasis added).

He eloquently explains that even though marriage started as a patriarchal institution based on rigid gender roles, it has evolved to recognize equality between the sexes without losing its essence of two people choosing each other to build a life together:

The marital bargain in California (along with other states) traditionally required that a woman’s legal and economic identity be subsumed by her husband’s upon marriage under the doctrine of coverture; this once-unquestioned aspect of marriage now is regarded as antithetical to the notion of marriage as a union of equals. FF 26-27, 32. As states moved to recognize the equality of the sexes, they eliminated laws and practices like coverture that had made gender a proxy for a spouse’s role within a marriage. FF 26-27, 32.

Marriage was thus transformed from a male-dominated institution into an institution recognizing men and women as equals. Id. Yet, individuals retained the right to marry; that right did not become different simply because the institution of marriage became compatible with gender equality…

The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage. The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry. FF 21. Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. FF 33. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. FF 48. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.(emphasis added)

He also recognizes the relationship between sex discrimination and sexual orientation discrimination:

[S]ex and sexual orientation are necessarily interrelated, as an individual’s choice of romantic or intimate partner based on sex is a large part of what defines an individual’s sexual orientation. See FF 42-43. Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

Finally, Vaughn concludes that the potential for good parenting knows no bounds.

The evidence does not support a finding that California has an interest in preferring opposite-sex parents over same-sex parents. Indeed, the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes….Proposition 8 makes it less likely that California children will be raised in stable households….the evidence shows Proposition 8 disadvantages families and their children.

As this opinion shows in so many ways, reproductive and sexual rights are integrally and intimately linked. When one is undermined so is the other. But when one is affirmed, the victory is doubly sweet.

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