If gays can’t get married, should I get divorced?

Why should I participate in an institution that reinforces bigotry?

The question sounds flip, but it isn’t. To what extent should a privileged class participate in an institution that enforces bigotry?

Gay marriage bans outrage me for several reasons, but it’s often overlooked that they make my marriage a method of reinforcing gays and lesbians’ second-class status. Every time someone is introduced as “my wife” or “my husband” it reminds them of that status.

No one nowadays with any conscience would belong to a country club that discriminates. So you could draw that analogy. On the other hand, I wouldn’t have expected white southerners to pull their kids from segregated schools: that was too much too ask. (Although it should be mentioned that many southern private schools, including the wonderful Carolina Friends School, were founded by those who wanted their children to have integrated education.).

A gay friend asked me this a few weeks ago. I sort of hemmed and hawed, and said that it might be difficult for my daughter, and it would be quite complicated, not to mention expensive, to set up a whole series of trusts and contracts. The transactions costs would be enormous!

“You talk about transactions costs, Jonathan,” he said, “That’s my life.”

Those who support gay marriage bans claim that they want to prevent the destruction of traditional marriage (ignoring the fact that straights have destroying traditional marriage for decades now). Oh yeah? Well, I’ll show them how to destroy traditional marriage: what if every straight couple thinking about getting married didn’t do so out of protest? And what if thousands if not millions of married couples started getting divorced and setting up civil unions in protest? What happens to traditional marriage then?

So: should I get divorced? I will post responses, with names if correspondents say it’s okay.

Update: It just occurred to me that the absurdly-named federal Defense of Marriage Act means that even if all the contracts, trusts, etc. are set up, federal law will not recognize the marriage. That has tax implications, obviously. One of DOMA’s hidden oppressions is that it makes it more difficult to advance the sort of straight couple protests that I suggested, because of greater financial consequences. That’s one more reason to repeal it. But that’s still not a reason not to consider protest divorce anyway.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.