Ari Ezra Waldman | Barack Obama | Gay Marriage

President Obama, Gay Marriage, and a Thank You to Mom

BY ARI EZRA WALDMAN

After arguing for the morality and legality of marriage recognition for gays, President Obama spoke to the graduating class at Barnard. Barnard is a small, private, liberal arts college situated across the street from Columbia University, with which it has been affiliated since 1900. But, Barnard is notable for another reason: its students are all women. 

273779-obama-champions-womens-rights-at-barnard-commencement-its-tough-out-thSome of the more craven members of the political classes saw the President's speech as outright pandering to the women's vote. Though no one can blame the Obama re-election campaign for reminding women voters that the Republican Party of 2012 is hostile to everything from reproductive choice to contraception to equality, the man who stopped by Morningside Heights this week was more professor than president, weaving an historical narrative that linked the women's rights movement to his unprecedented, brave, and important statement on marriage recognition. In short, the President used Mother's Day weekend to say thank you to those women -- from Margeret Sanger to Bella Abzug to Shirley Chisholm to Ruth Bader Ginsburg -- who fought civil rights battles on behalf of women. Without them, and the legal precedents they shaped, the gay rights movement would be decades behind where it is today.

The women's rights movement was not simply a fight for sexual liberation against the bonds imposed by a patriarchial and Puritanical culture. It was also a movement that established the right of personal sexual privacy. Social and cultural historians are more equipped to discuss the interaction and parallel lives of the women's and gay movements and the expansion of sexual freedom. Today, I would like to discuss the legal story.

CONTINUED, AFTER THE JUMP...

In the Nineteenth Century, women had few rights: they could not vote (something they still could not do two decades into the next century), own property, or even sever ties from an abusive husband. They had few, if any, sexual rights at all. It made sense, then, that the women's movement started as a quest for sexual freedom, the most important of which was birth control.

According to Professor Nan Hunter, Margaret Sanger transformed birth control into a social movement. She developed the legal strategy against contraception bans as both a health care issue (physicians need to be able to prescribe these tools to women to protect women's health) and an anti-obscenity crusade (states used obscenity rules to prevent doctors and others from even discussing issues of family planning).

Margaret-sanger-1-sizedIn 1916, Ms. Sanger opened the country's first birth control clinic in the Brownsville section in Brooklyn. An overwhelmingly black neighborhood today, Brownsville in 1916 was largely Jewish, always radical, poor, and crime-ridden (the infamous Jewish crime syndicate, Murder, Inc., started in Brownsville). Ms. Sanger's clinic catered to all comers, but Sanger made a particular plea to the poor: "Mothers," she announced, "Can you afford to have a large family? Do you want any more children? If not, why do you have to have them? ... Safe, harmless information can be obtained by trained nurses. ... All mothers welcome." In 9 days, 464 women visited the clinic; on day 10, police arrested Ms. Sanger for violating New York's obscenity laws.

Obscenity laws banned conduct and certain speech that was contrary to public morals. But, in addition to being statist and oppressive, they were discriminatory: New York's law, for example, included one small exception for physicians to discuss and provide contraceptives to prevent or cure "disease," but the provision had always been interpreted to apply only to condom use to prevent venereal diseases that affected men. Ms. Sanger challenged the constitutionality of the statute and though her conviction was affirmed by the state's highest court, she did secure a broader definition of "disease" that would allow physicians to protect women's health through birth control (People v. Sanger (N.Y. 1918)).

Where Ms. Sanger sought broader access to birth control through the doctors' exception, other advocates wanted to lift the cloud of obscenity from birth control entirely. They challenged Connecticut's contraception ban three times, losing in 1943 (Tileston v. Ullman) and in 1961 (Poe v. Ullman), and finally winning a great victory in Griswold v. Connecticut in 1965. in Poe, Justice Harlan dissented, noting that the problem with the Connecticut law was that the state was "intruding upon the most intimate details of the marital relation." Married women, however, should have full control over "the private use of their marital intimacy." In Griswold, Justices Douglas and Ginsburg took two different routes to the same conclusion: there is a certain special privacy in marriage that the state cannot penetrate. And, in Eisenstadt v. Baird (1972), after a medical professional was convicted of violating Massachusetts' anti-contraception law by lecturing on it and giving an unmarried woman a sample birth control device, the Supreme Court extended this right to sexual privacy from married to unmarried individuals.

By the time Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) were decided, the principle of individual sexual privacy was an essential part of what it meant to be a free person. Roe and Casey are complex and deserve their own discussion; but, suffice it to say, Casey reminded us that women have a substantive due process right to make their own intimate decisions. 

A successful fight for gay equality and honor hinges on these decisions. The successful fight against obscenity laws that prevented us from talking about homosexuality in public and that banned gay groups from organizing and gathering in public relied on the battles women waged against those same obscenity laws since Ms. Sanger. The successful fight against anti-sodomy laws relied on sexual privacy principles and the liberty interest in being free to make your own intimate sexual decisions. The successful repeal of "Don't Ask, Don't Tell" relied on the argument that private, Constitutionally protected behavior could never be inconsistent with honorable military service. Future success in securing workplace non-discrimination protections for gays and lesbians will assume the privacy and liberty principles of Griswold, Eisenstadt, and Casey to argue that one's private sexual identity could never be a reason to lose your job. 

And, perhaps most importantly, a successful argument for marriage recognition hinges on the legal foundation of sexual liberty that the women's movement has worked hard to secure. There are undoubtedly additional steps to take, but a world where women can be forced to have children because it is obscene to talk about vaginas, reproduction, and abortion also is a world where police can arrest a gay man for making love to his partner in the privacy of his own home. A world where a woman cannot initiate divorce proceedings because divorce is immoral also is a world where a lesbian cannot visit her same-sex partner in the hospital because their relationship is immoral. And, a world where a woman cannot choose her reproductive destiny is a world where a gay man cannot choose his destiny to love, be loved, and bring new life into the world.

In a week where we are supposed to thank our mothers for the sacrifices they made to raise us into the men and women we are today, do not forget that we owe further thanks to the mothers of our civil rights struggle. Their sacrifices -- and their legal accomplishments -- have made this extraordinary time possible. 

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. I hate to say this, much the emphasis on the War on Women may have run its course and backfired with American voters. If the new CBS poll is to be believed, Romney is up by 3 points and even up with women now. We can't overestimate how socially conservative Middle America is.

    Posted by: Lucas | May 15, 2012 12:34:51 PM


  2. I think the president is spot-on with this. It is an excellent example of how more rights for anyone = more rights for everyone. The various civil rights movements reinforce each other, rather than distract from each other.

    Posted by: NullNaught | May 15, 2012 12:42:27 PM


  3. "It was also a movement that established the right of personal sexual privacy."

    Meh. Today, there's certainly a connection, but when the women's rights movement first got underway, men had a whole lot of "personal sexual privacy". The Victorian culture that suppressed most women also gave men free reign to entertain themselves, albeit only with "loose women", with few legal consequences.

    Posted by: BobN | May 15, 2012 12:54:15 PM


  4. Lucas, what was the margin of error of that poll?

    Posted by: frank | May 15, 2012 12:56:55 PM


  5. Mr. Waldman, can you please retire the term "gay marriage"?

    Posted by: TampaZeke | May 15, 2012 1:03:50 PM


  6. Obama on the View program today which is geared to women voters so I gather,could not been have better.
    No question at all that he needs to carry on as our President Obama!

    Posted by: VDUFFORD | May 15, 2012 1:14:48 PM


  7. I'm looking forward to seeing this narcissistic maniac expelled from office. Did you see he had his people on Whitehouse.gov insert his name into the biography of every President? For example:

    "JFK created the Peace Corps." is now "JFK created the Peace Corps, and Obama....."

    "Nixon was President when man landed on the moon" is now "Nixon was President when man landed on the moon, and Obama....."

    The man should be miles ahead. He's not and they are panicking. He played the "well, with my name it's HARD to be re-elected" card today. If you libs don't think the entire middle country is ready to vomit him away, you need to pay attention to in-between New York and California. He's losing big in November. BIG.

    Posted by: MarkUs | May 15, 2012 1:19:00 PM


  8. Good God, Almighty. This is the worst case of a gay man having his head up women's skirts that I have ever seen--and that is really saying something.

    Gay men owe ABSOLUTELY NOTHING to feminists, nothing whatsoever. Feminists are about empowering women at the expense of men, period, and that informs every action they take. The only use they have for gay men is as their underlings and subordinates, which role the latter have all too often willingly acceded to, out of misguided motives, including despair over the possibility of straight men ever accepting them.

    Feminists have manipulated a homophobic male culture that makes men emotionally and socially dependent on women to their advantage in their quest for power.....so that, in a very real way, their gains depend on the very culture that has led to our oppression and social isolation.

    The victories that have finally begun to come recently for gay men are owed to the straight men who have championed them; virtually none of them have been the result of initiatives taken by women........and the reason we are beginning to see this change is that men have finally gotten smart and realized that a homophobic male culture that keeps them dependent on women is an obstacle to their own freedom and empowerment. It took a while for them to see that as the problem and to form an effective response, but it is finally coming.

    Gay men can either recognize that, find common cause with other men and share their destiny......or they can continue to be the playthings, social accessories, and "wind beneath the wings" of feminists, who will be more than happy to continue using them in such manner.

    I sincerely hope we are smart enough to do the former.

    Posted by: Rick | May 15, 2012 1:30:51 PM


  9. And by the way, while every one of the claims made in this article could be at best disputed, if not completely delegitimized, perhaps the most laughable is the notion that feminists have been against "obscenity" laws, when, in fact, they have been on the same side of the fence as the Religious Right when it comes to pornography.....just as they are when it comes to legalizing prostitution.

    As in every other case you care to examine, it is not the desire for greater freedom that motivates them, but their desire to empower women at the expense of men.

    Posted by: Rick | May 15, 2012 1:38:52 PM


  10. Why are there so many comment trolls lately?

    Posted by: joest | May 15, 2012 1:57:10 PM


  11. @Joest
    While I don't like the term "troll," I notice the same thing. I think it is because we are winning and they feel desperate.

    Posted by: NullNaught | May 15, 2012 2:05:22 PM


  12. Ric, you're crazy. If you can't see that male chauvinism oppresses both gay men (and straight men who don't want to become John Wayne clones) and women, you're just another loon out of the asylum. Or a GOProud member. Which is synonym of course.

    Of course, I've seen you post here before, so I know you're short of a brain and I don't expect you to be right. I'm just warning others.

    Posted by: G.I. Joe | May 15, 2012 2:07:42 PM


  13. Markus and Rick -- GET A ROOM!!!!

    Posted by: David Ehrenstein | May 15, 2012 2:18:12 PM


  14. G.I. Joe, as everyone who posts in here reularly knows Rick loathes and despises women and anything and everything that might be considered "feminine."

    In fact he loathes and despises women so much I strongly suspect that Rick IS a woman.

    Posted by: David Ehrenstein | May 15, 2012 2:21:02 PM


  15. Markus and Rick already have a room: the same room, as they are the same, horrible person.

    Posted by: MateoM | May 15, 2012 2:40:29 PM


  16. I'm beginning to find Rick even more funny than the mock-Rick sock-puppets. Leave him be, oh mocking socks. He hangs himself with his own rope of lunacy.

    Posted by: Zlick | May 15, 2012 2:52:40 PM


  17. I'm not Rick and I like women. I just despise liberals with their hands in my bank accounts. We exist you know. Hi!

    Posted by: MarkUs | May 15, 2012 3:46:10 PM


  18. Markus and Rick, I agree. I also hate blacks. And I'm also totally not either of you.

    Posted by: ratbastard | May 15, 2012 3:58:23 PM


  19. When you read many of the comments on this and other sites you realize that Churchill was right when he said: "Democracy is the worst system of government in the world, except for every other one that has been tried".

    Posted by: andrew | May 15, 2012 4:59:10 PM


  20. The price we pay for democracy is that even people of Ratbastards ILK have a vote.

    Posted by: andrew | May 15, 2012 5:01:03 PM


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