The University of Chicago Magazine

In Mary Anne Case’s Regulation of Sexuality class, students analyze what it means to be a spouse.

It’s May 1970. A young, idealistic Minneapolis couple—a law student and a librarian—want to get married. But when they go to the Hennepin County Courthouse to apply for a marriage license, the clerk flatly refuses. A crowd of reporters has gathered outside the courthouse when the couple, Jack Baker and James McConnell, emerge empty-handed. Among the reporters’ questions: “Who’s going to be the wife?”

“Today,” says Mary Anne Case—May 2008, 38 years after the incident that sparked the first gay-marriage case to reach the U.S. Supreme Court—“that question might well be seen as a dig, or as an assumption about sex roles in gay relationships. It’s important to remember that in 1970 when it was asked, this was a very real and important legal question.”

In 1970, Case explains, husbands and wives in Minnesota—and in every other state—had different legal responsibilities. “In many states only the husband could bring action for the loss of sexual services from the wife. Only the husband had an obligation to support the wife,” she says. “There was an asymmetry embodied in law and not yet successfully challenged as a matter of U.S. constitutional law.”

Baker, the law student, filed suit, and in 1972 the case made its way to the Supreme Court, which dismissed the appeal “for want of a substantial federal question,” Case says. These days, perhaps the one thing that all sides of the debate can agree on is that there is “a substantial federal question as to the right of same-sex couples to marry.”

It’s a fascinating story, but not one of the 16 students in Case’s Regulation of Sexuality course—cross-listed with gender studies and open to non-law students with permission—is watching Case tell it. Instead, 15 are bent over their laptops, typing furiously. One iconoclast takes notes the old-fashioned way, her left hand hooked over the top of a notebook.

The subject of today’s lecture is marriage, with a particular focus on same-sex unions, and Case has also included a few readings on polygamy. So far in the course, Case has covered such topics as consent, sex acts and the U.S. constitution, prostitution, and sex toys. The class meets in the Felix Frankfurter Seminar Room—Room B in the Laird Bell Law Quadrangle. It’s in the basement but has a wall of floor-to-ceiling windows that let in plenty of sunshine. Behind Case are a blackboard and a glass-fronted bookcase filled with law volumes.

Case sits with her fingertips pressed together: “What is a marriage license historically but a license to have sex?” she asks, not rhetorically. Another historical function of marriage, she continues, was the “regulation of identity.” Among the earliest sexual-identity categories, Case argues, “are not only male and female, but that particular form of female known as wife. A married woman had an identity, and that identity determined things not only about her sex life but about the rest of her life, in the way that identity categories do.”

Today marriage “is no longer the sole venue for licensed sexual activity,” Case says, and “the identity category of wife is no longer permissible as an identity category under American constitutional law.” In other words, men and women are now both considered “spouses,” and they have the same legal rights and responsibilities.

The day’s 14 readings range from early cases focusing on same-sex relationships to an excerpt from Michael Warner’s The Trouble with Normal (1999), in which he argues against gay marriage. Case starts with the 1996 Defense of Marriage Act (DOMA), signed into law by President Bill Clinton. That act declares that a same-sex marriage recognized by one state does not have to be recognized by other states—and is not recognized by the federal government for any purpose. The law was fast-tracked through Congress, Case explains, because Hawaii seemed on the verge of legalizing same-sex marriage.

During the discussion that follows, Case stops a student who mentions the “benefits” of marriage. “It’s important to remember that it’s not ‘benefits’ accorded to marriage, but ‘treatment’ accorded to marriage,” she cautions. “Sometimes that treatment is to your advantage, sometimes it is not.”

She offers a hypothetical example of a widow who, after her husband dies, gets remarried, this time to a woman. Because the federal government does not recognize the second relationship as a marriage, the widow could keep her husband’s pension. “All Congress is doing in the Defense of Marriage Act is expressing its disapproval of same-sex marriages,” Case says, “and not even very effectively.”

“One thing that struck me was the word ‘spouse,’” a young man points out. In DOMA, “spouse” is defined as either “husband” or “wife.” “I was sort of shocked by the effort to push those categories back in.”

“Why?” Case wants to know.

“It seems to me like a much older, outdated definition of what a spouse is,” he says. “The point seems to be to try to reverse the general cultural progress of the past quarter century.”

“I am 100 percent in agreement with you,” says Case. “The real losers in the same-sex marriage debate, from a feminist perspective, are straight women,” who now are at risk of having to become “wives” once more, with all the negative historical baggage that term carries.

The discussion turns to child-rearing and the conservative argument that children need to see, on a daily basis, what men and women are like. Case quips, with flawless comic delivery, “This has got to be an argument for more nudity in the home.” The one visitor in the class laughs so loudly it’s embarrassing. Case’s serious-minded students do not even smile.

The students also read a 2005 lecture Case gave at the University of Minnesota Law School, published that year in the Minnesota Law Review. Called “Marriage Licenses,” it makes a surprisingly obvious argument that is rarely heard in the same-sex marriage debate: once married, an opposite-sex couple can live their lives pretty much however they choose. They can keep separate finances, live in different cities, or have an open marriage, and their right to the legal status of marriage is never questioned. But same-sex couples who want to register as domestic partners, Case writes—and reiterates in class—have to meet a range of requirements that opposite-sex couples don’t. Typically, partners have to live together and have commingled finances. One Florida employer that offered benefits to domestic partners “actually tried to ask if people were having sex,” she says. “Something has to substitute for the legal licensing scheme.”

These privacy concerns were among the many reasons gay-rights advocates were not interested in marriage earlier. “It wasn’t a priority for the movement for the longest time,” Case says. “The national gay-rights organizations were not there with Baker in Minnesota” or, initially, with the couples in Hawaii who inadvertently brought about DOMA. The gay-marriage pioneers were “couples who thought that marriage was what they wanted.”

“One of the cute and sweet things about the Baker couple is that they stayed together,” Case notes. “Not only did they stay together, but as of 2006 they were still litigating their marriage with the IRS.” This revelation finally manages to raise a smile from several of the otherwise quite serious students; one of them even says, “Awwww.”

Syllabus

According to Case’s syllabus, Regulation of Sexuality “explores the many ways in which the American legal system directly and indirectly regulates sexuality, sexual identity, and gender.” The course encompasses marriage, child custody, employment, education, and criminal law, as well as constitutional rights such as free speech, equal protection, and due process.

Readings include excerpts from reported cases, trial transcripts, and law-review articles, together with excerpts from work by journalists and scholars in several disciplines. Cross-listed in gender studies, the course is open to non-law students with permission. Law students in the class can take an exam or write a 20-page paper. Students from other disciplines can write a 20-page paper or four five-page papers, Case says, “in the modality of their discipline.”