Former co-blogger Chris Geidner and I are having a back and forth on Bush's rhetoric on the Federal Marriage Amendment, which allows the Republicans to pretend the elephant in the room isn't really there and instead blame everything on activist judges. Will Baude picks apart Jason Mazzone's criticisms of the FMA, particularly the already-cliched claim that the proposed amendment would be the first to take away rights rather than grant them. One amendment that Will fails to note is the 14th.
As many other feminists have pointed out, the 14th Amendment was not an unmitigated good, inasmuch as it first enshrined gender discrimination into the Constitution by specifying "But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." [emphases added]
The usage of masculine pronouns in the original Constitution could be passed over as grammatical convention, but the repeated and unnecessary adjective of male hardly can be. The 14th would have done quite as well without it... or would it? That might be an interesting historical hypothesis: would Southern states have extended the franchise to women in a bid to have their representation reduced less than that of Northern states that didn't grant women's suffrage? In any American state, people of color were a minority, while women were roughly half the population (except perhaps in some new frontier states).
Anyway, I find any description of same-sex marriage that includes "the right of gay men to marry the men they love" to be rather silly. People who identify as homosexuals can and do marry, and framing it as a matter of love opens the slippery slope to those who would say that a man ought to be able to marry the sister he loves, too.
This is a matter of gender: every person I know who does not favor legal recognition of same-sex unions thinks that men and women are fundamentally different in a way that is relevant to their marital roles. Otherwise, why care whether marriage is one man and one woman, or two men, or two women? The law no longer makes different requirements of men and women in marriage (nor divorce). If I successfully petitioned to have my sex legally changed so I could marry a woman, there's nothing in the law of marriage that I would fail to fulfill by not being physically male.
Indeed, I assume that the folks at immigration don't demand that one strip down before entering the country, so if I wanted a Russian mail order bride of my very own, I could just have her bribe a Russian official to issue her papers identifying her as male, tell her to cut her hair short and try to speak with a deep voice, and she would be my husband and I would be her wife under U.S. law. "In Russia, I am a man," she would explain in her delightful accent to the judge overseeing the fraud prosecution against us.
A state that married us but later discovered my spouse's lack of male genitalia might attempt to sever our union on the ground that it was not between a man and a woman, but few states trouble to define what constitutes a "man" and what a "woman," out of the comfortably pre-deconstructionist belief that these are self-evident concepts. A woman has some body parts that men do not, and vice versa. What this means for sex-ambiguous Americans, I don't know -- the old medical regime was to lop down anything that didn't seem sufficiently useful, ignore the undescended testes and declare the baby a girl, this classification legally inscribed by way of the birth certificate. Even in these more enlightened times, parents still must write something down under sex. Besides, when the hormonally male but shortened-into-female found him/herself interested in women, s/he was a lesbian, and the state's hostility to his/her sexual preference is no more objectionable than that to the orientation of lesbians who are thoroughly physically women.