Cynthia Godsoe (Brooklyn Law School) has posted Marriage Equality and the 'New' Maternalism (California Law Review Circuit, Vol. 6, No. 145, 2015) on SSRN. Here is the abstract:
The battle over same-sex marriage centered on children, with both sides claiming to be the guardians of children’s welfare. Although marriage equality undoubtedly represents a victory for diverse families, the focus on children has also had the detrimental impact of imposing a traditional parenthood paradigm. Specifically, the Obergefell v. Hodges opinion reflects a maternalist philosophy wherein a woman’s perceived natural and limited role is as an all-sacrificing mother virtually inseparable from her children. Justice Kennedy’s description of one female plaintiff couple speaks volumes: “April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon.”
This Essay explores the maternalism infusing the Obergefell opinion and argues that it expresses a traditional view of women’s place in the family and in the public sphere. Maternalism brings dual harms of limiting all women’s roles while ignoring the many women, particularly low-income women and women of color, who do not fit the ideal mother paradigm. Obergefell’s focus on the female plaintiffs’ maternity, in contrast to its description of the male plaintiffs’ occupations, mirrors the nineteenth century concept of separate spheres; women are guardians of the private home sphere while men dominate the public professional and civic sphere. Despite deciding against opponents of same-sex marriage, the opinion thus inadvertently endorses their gendered parenting arguments. Indeed, this Essay draws parallels between Justice Kennedy’s praise for the ideal motherhood of the plaintiffs and his prior opinion restricting access to abortion in Gonzales v. Carhart. To be clear, this critique is not meant to suggest that Obergefell should have come out differently, or that its holding is as harmful as Carhart’s. Nonetheless, even the well-intended reification of motherhood brings costs. The ongoing gendered stereotypes embedded in Obergefell reinscribe essentialist gender roles in the family and polity, ultimately limiting marriage equality’s egalitarian power.