On The Law, Marriageability, and The Supreme Court

This begins with a very long sentence, inclusive of serial digressions on the topic:

While I have never had any significant personal interest in getting married and--less topical but still significant--I am critical of the prized, exemplary status accorded marriage culturally, and even more so of the economic and legal advantages awarded by the State to any two adult individuals--formerly white, formerly of the same skin color, and now formerly of differently sexed bodies (is it not interesting how discriminatory animus, as the Law itself, shows its sad obsession with excluding specific bodies from its irregular protections and its unearned patronage in this neat, capsule history?)--who, whether foolish or wise, whether loaded and living it up and leaving it in Las Vegas or sober at St Patrick's, decide, for any reason or no reason, for love or money or loneliness or status or spite, to claim their right to this contract that we call an institution, I nonetheless have never found the curiously overwrought desire in The Law to segregate same-sex adults from this contract (without entertaining even the condescending lip-service of "separate but equal") to be credulous or even intelligible.

I am less perplexed by the impulse two people may have to enunciate a ritual declaration of union between them than I am by the State's longstanding preoccupation with singling out this dual relation for its imprimatur, while other relationships and other adults, paired but unmarried or--Heaven forfend!--single--nearly all by dint of birth not among the 1% that enjoys the wealth of the nation--are effectively punished for their willful failure, or their legal ineligibility, to submit to this contract. And thus this structure makes a demand of the institution, a demand whose call is heard no less by those able to heed it under The Law's latest grudging concession of whom it will accept as a person (even then only under certain conditions and in specific locations) and those still shunned by its embrace and ridiculed by its exceptional promise--a promise it guards jealously in its bosom, as a child does with a secret or rather an old toy, carefully withheld from play by the merest interest from another child.

The value of the Other Body does not derive from the ban placed on its marriageability, rather the Body in question--though unmarked by any outward sign of its intrinsic, alien difference, except, of course, the same difference displayed by nearly everyone: the supposedly unified, immutable sex of the body itself, now cleverly redeployed as the mark of difference, of Cain, by its proximity to another body displaying the same mark--is the very reason for its exclusion from the contract. The spatial dimension, and the arena of the social, are thus conscripted to render the familiar strange, and theorize the discovery of essential difference, of identity, in an otherwise undifferentiatable body. It is through this guilt by association, this conspiracy theory, that the Law discerns the identity that marks this unmarked body. And this is how, as Foucault memorably demonstrated, the action, the crime, the trajectory of the act defines the past and future of the body, becomes an identity, the crime becomes the body itself--becomes the Other Body--or as the Bible clarified so much earlier in the King James, the Strength of Sin is the Law. And in these latter days the struggle for civil rights has effectively removed much of the need for policing, because now we nominate ourselves for the State. The act is eclipsed by the name. And the Law is still catching up to what this means in regard to its strictures, prejudices, and punishments.

But the weakness of the Law in this case is that it is based on the notion of Sin. It is not Sin that determines the Law, and despite the important genealogical relationship between Commandments and Religious Laws and the field of American Law, they in fact are not coextensive, rather they take a very different interest in a series of similar topics and dilemmas. And though under Religion these topics do not represent dilemmas, under the Law, they must.

But let us return to the question of the problematic, intractable, ungovernable Other Body that even though the Law has spent centuries trying to define, detect, dissect, and force into submission, this Other Body keeps slipping away, as the Law realizes and re-realizes that it has never had ethical ground to stand upon in the first place in this matter. The Law of Desire is not subject to the Law of Man. And despite the paucity of reference in history books it is surely as old as the oldest profession, which is not prostitution as the romantics would have us believe, but the profession of love.