Friday, August 28, 2015

Compromise and Marital-Status Discrimination

At the heart of After Roe is a story about when and why conflict about abortion and gender escalated. Before writing the book, I believed that the Roe decision itself inevitably led to the culture wars we face now. As Gene Burns, Linda Greenhouse, and Reva Siegel have shown, compromise on the abortion issue itself seemed impossible well before the Court intervened. By raising the salience of the abortion issue, however, the Court drew attention to a question that hopelessly divided Americans. In responding to Roe, the antiabortion movement got bigger and more sophisticated. As historian Daniel K. Williams argues in a forthcoming book, abortion opponents also responded to the decision by prioritizing a constitutional amendment. Movement members ended up supporting whichever political party endorsed their constitutional agenda. When Ronald Reagan made the Republican Party the “party of life,” he strengthened an alliance between pro-lifers and the political Right.

Just the same, as I document in After Roe, the Court’s 1973 decision did not immediately or inevitably eliminate compromises on other important gender issues. Indeed, in the decade after Roe, influential activists on either side of the debate viewed common-ground solutions as more important than ever, particularly on the issues of pregnancy discrimination, welfare for adolescent mothers, and even the regulation of fetal research. I argue that the polarization of these issues came later and for reasons beyond the Court’s decision, including the rise of the New Right and Religious Right and political party realignment.
The book left me wondering about other areas of possible cooperation. At times in the 1970s, some pro-lifers pushed for laws banning marital-status discrimination, particularly at the local and state level. For certain movement leaders, these laws promised to reduce abortion rates by removing the stigma of illegitimacy and unwed motherhood. In the same period, as part of the early push for civil-rights ordinances, gay, lesbian, bisexual, and transgender activists also called for bans on discrimination on the basis of both sexual preference and marital status. For these advocates, ending marital-status discrimination would protect gays and lesbians who could not marry while undermining the legitimacy of state regulation of sexuality more broadly.
Agreeing with gay, lesbian, bisexual, or transgender activists would, I imagine, have exposed another fault line in the antiabortion movement. Some movement members saw sexual irresponsibility, not abortion, as the core problem in American society. While praising marital, procreative sexuality, others argued against laws that punished what they considered transgressive sex, seeing these regulations as harmful to children and mothers and coercive of abortion.

Serena Mayeri’s forthcoming work on the rise of marital supremacy in the 1970s will illuminate an important part of the story about challenges to the sexual status quo in the decade after Roe. A surprisingly diverse group of activists called for protection of the non-marital family. In order to understand the consequences and history of the marriage equality struggle, we should turn our attention to the legal history of that effort and its ultimate decline.