Because this basic line of argument—by far the most influential in the current debate—clearly flows out of the liberal tradition of “rights,” I will refer to it as the “liberal model.”
Now it is my contention in this article that this liberal model, however much it has dominated the legal movement toward gay rights, both in America and elsewhere,3 is finally incoherent. In order to see this incoherency, the first part of this article will examine a couple of variations on the model, as well as the strong criticism leveled at it by more radical thinkers, such as Michel Foucault. The second part of the article will argue that the push for gay marriage presupposes the subordination of the masculine and the feminine to the polarity of alternate “orientations.” In doing so, it fragments the integrity and interior relation of basic elements of the human being: the sexualized body, desire, freedom, and love. Finally, it will be concluded that the liberal push for gay marriage amounts to a re-grounding of society on an essentially gay (and therefore fragmentary) anthropology.
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3. The liberal model can be seen in the rapidly expanding list of countries that have, through various combinations of judicial and legislative action, allowed marriage or similar legal benefits for and recognition of marriage-like unions, as well as adoption, for homosexuals. Britain, Spain, and Canada are among the most recent of these. Other countries that have made similar legal reforms include: Belgium, which in 2003 legalized “homosexual marriage”; The Netherlands, which in 2000 authorized “homosexual marriage”; Denmark, which has allowed “registered partnerships” since 1989, a change that was then followed by Norway (1993), Sweden (1994), Iceland (1996), and Finland (2001). In 1999, France created the pacte civil de solidarité (or “PACS”); Germany allowed “registered partnerships” in 2001; New Zealand gave recognition to homosexual “unions,” without changing the marriage statute, in 2004. Other states, such as the city state of Hong Kong, are currently attempting to sort these issues out precisely through the lens of a liberal notion of the possible “extension” of the same rights to a “sexual minority.” The South African Constitutional Court ruled last December that the South African marriage laws “represented a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need of affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.” The court allowed Parliament one year to amend the marriage statute to eliminate its discriminatory character, after which time the court would itself construe the statute in “gender-neutral” terms. In America, only Massachusetts thus far provides for “gay marriage,” although Vermont (through court mandate) and Connecticut (through legislative process) provide for civil unions. On the other hand, the highest courts of Washington State (in Andersen v. King County, supra) and New York (in Hernandez v. Robles, supra) recently handed down rulings rejecting arguments that limiting marriage to the union of a man and a woman violated their state constitutions. As we shall see more thoroughly below, however, the way in which the arguments are framed is nevertheless crucial. On this point, the Washington and New York rulings remain ambiguous.
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