Reframing Marriage equality as death equality


Reframing Marriage equality as death equality
quarterlyhorse.org/fall16/martin-baron

Michelle Martin-Baron (Hobart and William Smith Colleges)

A provocation: what would it mean to reframe the marriage movement as a crusade for death
rights and death equality?

Even though weddings are the performative centerpiece of the activism that successfully
challenged the Defense of Marriage Act (DOMA), the ground-breaking case of Windsor vs.
The United States (2013) is one about death rights. When Edie Windsor's partner of over forty
years, Thea Spyer, passed away, Windsor found herself in a precarious position; Spyer had
left Windsor her estate, but was not considered to be a "surviving spouse," the term spouse
referring "only to a person of the opposite sex who is a husband or a wife" under DOMA.[1] 
These legal restrictions famously cost Windsor $300,000 more in inheritance taxes than she
would have been charged if she and Spyer had been in a heterosexual marriage.  In other
words, the "price" of being LGBT in the United States had a concrete figure, which Spyer's
attorneys used to make their case.[2]

Ogerbefell vs Hodges (2015), which effectively made gay marriage legal across all fifty states,
centered around questions of death as well.  James Ogerbefell was denied the right to be
listed as partner John Arthur's surviving spouse upon Arthur's death.  This denial not only
renders the two "strangers even in death," but also makes it impossible for Ogerbefell to
receive survivors’ benefits as heterosexual widowers or widows would.[3]  Additional plaintiffs
in the case joined in order to protect their families in the event of unforeseen death or injury. 
Without legalized same-sex marriage, both partners could not be equally considered parents to
their adopted children, leaving the family unit vulnerable. Similar situations are brought by
plaintiffs in the twenty-seven other cases brought before the courts regarding same-sex
marriage.[4] 

Viewing Windsor v. the United States through the lens of death exposes marriage equality as
about determining legal kinship for purposes of inheritance.  In this light, the conservativism of
marriage is revealed, as the passing down of property and wealth is revealed to be at the heart
of the institution.  Ogerbefell v. Hodges adds the dimension of protection in life, and the
concerns regarding death or injury that acutely effect the living, particularly minor children.
When we remove the performative apparatus of the wedding, we are left with raw kinship ties. 
Although the wedding is designed to make these ties public, durable, and communal, these
ties become exposed in the face of loss, when we strip them down to questions of bodies and
access.

The recognition of kinship relations is a legal process in the United States.  Legalized kinship
matters when it dictates who has access to the physical body of another person, whether that
body is living, injured, or dead; romantic partner, blood relation, or dependent child.  Despite

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the legalization of marriage in individual states, same-sex couples must have a durable power
of attorney in addition to multiple (and costly) other documents enabling each other access to
not only each other’s finances but also to their bodies in the case of injury or death.[5] 
Because, according to U.S. Supreme Court Case De Sylva v. Ballentine (1956), "there is no
federal law of domestic relations," the jurisdiction of many of these types of (non-tax related)
claims belongs to the individual state (and thus the slow state-by-state legalization popping up
across the country).[6]  Marriage equality has not completely solved questions of equity for all
forms of coupled kinship in the United States.  Coupled kinship is by no means the only kind of
kinship. Kinship emerges when adults come together to care for loved ones, themselves and
others, both adults and minors, which may or may not involve cohabitation, monogamy,
biological offspring, sexual intimacy, etc.  Marriage precludes many of these kin relations that
become important when we think of end-of-life concerns.

Who has the right to access the deceased and determine burial and memorial practice?  The
ability to call a group of people a family and have them treated that way legally (not just
taxation, but also mobility and travel, health benefits, etc.) is at stake – the definition of family
and how it relates to wealth, capital, and access to resources.  During the AIDS crisis, bodies
and their vulnerability to state neglect were at the heart of queer activism.  Bodies and their
vulnerability to state violence/genocide are at the root of the contemporary Black Lives Matter
movement.  When viewed through the lens of death rights, gay marriage has the potential to
put bodies and kinship ties back at the center of politics. This is where queer politics have the
potential to be truly revolutionary and to work in concert with human inequality as a whole.

After the massacre at the Pulse Nightclub in Orlando, where forty-nine men and women were
killed, primarily LGBTQ+ people of color, intersectional questions of death rights are
tantamount.  When queer folks utilize stage names, drag personas, and other non-legalized
forms of identification, including but not limited to gender identity, the precarity of legal
frameworks to dictate not only access to bodies but also information, demonstrates that
LGBTQ+ people continue to live their authentic lives somewhere outside of legal limits.  When
homophobia and racism cut short the lives of LGBTQ+ people, these folks have generally not
made the extra legal preparations to ensure that their chosen families and extra-legal kinship
networks can carry out their last wishes.  Tackling the questions of equitable kinship and death
rights widens the umbrella of marriage politics.   A focus on death rights and equality places
gun control, poverty and discrimination, and criminal justice at the center of LGBTQ+ civil
rights. Our activism must continue to include, but also be fought beyond, the courthouse and
the ballot box. 

If there's anything that over a decade of research into queer funerary ritual and mourning has
taught me, it's that queer folks are especially adept at transforming grief and rage into creative
and often efficacious activism and social justice work.[7]  Strategies like the die-in, for
instance, have been utilized in various forms by a host of other social justice movements. This,
coupled with reports of generosity surrounding funeral and memorial efforts for the victims of
the Pulse Orlando massacre, leads me to believe that LGBTQ+ politics will not be guided by
the wedding, but by the funeral.

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NOTES

1. Windsor v. The United States, 570 U.S. 2 (2013).

2. Of course, this figure does not even begin to address the psychological price of fulfilling the
role of abject within a normative society, a price which is realized differently due to a host of
other intersecting identities, and which would be impossible to calculate in financial terms.

3. Ogerbefell v. Hodges 576 U.S. 5 (2015)

4. Many thanks to my colleague Katherine Mason for extended discussion of this matter.  For
more on the protection of children vis-a-vis same-sex marriage see Katherine Mason,
"Reproductive Futurism and Same-Sex Marriage" (2016, unpublished at this time)

5. The high price-point of legal services renders some same-sex unions more protected than
others, exposing poverty as an essential barrier to LGBTQ+ equality.

6. De Sylva v. Ballentine, 351 U. S. 570 (1956).

7. This is a well-documented phenomenon, particularly in scholarship around AIDS activism. 
See Douglas Crimp, Melancholia and Moralism (2002), Deborah Gould, Moving Politics:
Emotion and ACT UP’s Fight Against AIDS (2009), Benjamin Shepard, Queer Political
Performance and Protest (2010). 

WORKS CITED

Crimp, Douglas. Melancholia and Moralism: Essays on AIDS and Queer Politics. Cambridge
and London: MIT UP, 2002.

De Sylva v. Ballentine. 351 U. S. 570 (1956).

Gould, Deborah. Moving Politics: Emotion and ACT UP’s Fight Against AIDS. Chicago: U of
Chicago P, 2009.

Mason, Katherine. "Reproductive Futurism and Same-Sex Marriage," unpublished, 2016.

Ogerbefell v. Hodges. 576 U.S. 5 (2015).

Shepard, Benjamin. Queer Political Performance and Protest. New York: Routledge, 2010.

Windsor v. The United States. 570 US 2 (2013).

Quarterly Horse 1.1 (Nov. 2016), http://www.quarterlyhorse.org/fall16/martin-baron.

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	Reframing Marriage equality as death equality