Women serving in combat roles in all branches of the military is a no-brainer for a lawyer steeped in human rights. With the apex of patriotism in received nationalist wisdom formed by the ultimate sacrifice of being killed and the ultimate transgression of killing, why should women soldiers be denied equal status with men?
And in a far different sphere, why should gay and lesbians be denied the right to marry openly, and celebrate their love and dedication to their partners as heterosexuals have for thousands of years?
Equality is the trump word, and its inexorable progress has been marked in bright line since Tocqueville’s 1830 premonitory pages opening "Democracy in America." The logic of equality is fierce, and its latest expression in post-industrial societies — where work is increasingly marked by non-physical skill — falls on women in the military and the legalization of gay and lesbian marriage.
If forced to vote on it, I would certainly honor the logic of equality. Yet I find it hard to celebrate either.
Maybe there is more to my reluctance than the accumulation of prejudice. I know my reluctance is not esthetic. We will soon be snowed under with films featuring brave women in fatigues on the frontiers of battle with bearded men, and we’ll get used to them.
LGBT parlor celebrations are no less glamorous or quaint than women in white dresses and grooms in slim fit monochrome suites. I think my reluctance is contextual in both, and by contextual I mean the retreat, in human rights, of values that may be more important than equality.
My colleague Katherine Franke may have expressed it best in the case of marriage. The problem is with celebration: Why should marriage be such a cause for public celebration? It need not be the ritualistic Indian marriage where half of the family’s wealth is sunk to impress the neighbour, or the lavish marriage of frustrated Sunni Syrians showing their wealth on the occasion to tell their monstrous non-Sunni rulers that they count because they still have money. The question goes deeper. It is the matter of the forced perception of tying knots publically versus not doing so.
It is unfortunate that Thomas Mann did not elaborate much in his "Treatise on marriage" beyond, precisely, his exposition of the normalcy of gay relations. In previous religious worlds, marriage was celebration of the arrival of family. The social exuberance of procreation made some sense, especially against the cruelty of nature forcing the loss of half or more of the babies who were born.
In our secular world, marriage is no longer the promise of the arrival of offspring into the family. So what we are left celebrating is the confinement of private sexual acts into the duo engaging them until death makes them part. Celebrating a confinement is odd: If you celebrate, it is to say out loud that you have an exclusive right over your partner’s sexual favours. If not, what then are you celebrating?
A lawyer who believes in equality cannot vote against gay marriage. The stronger question, however, is about the public, including state, celebration of marriage. A lawyer who questions the adequacy of the public celebration of a uniquely intimate relation thinks too far outside the box to be taken seriously, for the alternative is no marriage. Society has no place for family outside marriage, even if the social expression of intimate and exclusive relationships forces the whole category to be increasingly traversed with exceptions.
This is increasingly the norm: second marriage and new families, overwhelmingly for men, in post-industrial society; polygamy, also uniquely for men, in pre-modern states. The breakdown of marriage with the addition of a full active generation over the 20th century remains unimaginative, all continues to happen within the secular definition of marriage publicly celebrating intimate sexual intercourse.
The same goes for women in battle. Forgive the prejudice of women being less associated with meting out violence and death on fellow human beings than their male counterparts. In some of the better literature, such as French philosopher Gaston Bachelard’s "Poétique de la Rêverie" (1960), a female "anima" has all sorts of superiority over male "animus," not least the superiority of convincing over coercing.
Now ‘women in battle’ celebrate exactly the opposite: the right for women to kill and be killed in battle, equal to men. The lawyer can hardly oppose this. Lost in the logic of equality is the superiority of conversation over its lethal interruption with the sword. Instead of celebrating women’s nonviolent anima, instead of corralling and impugning man’s right to kill and be killed as an aberration of pre-modern history, we give in to violence as the legitimate, gender equal, engine of history.
Chibli Mallat is chairman of Right to Nonviolence, a human rights lawyer and Presidential Professor of Law at the University of Utah.
Copyright 2016, Deseret News Publishing Company