Re-framing Marriage Equality as Death Equality

In this presentation, I offer a provocation – what would it mean to reframe the marriage movement as a movement instead about death rights and death equality?

Even though weddings are the performative centerpiece of the activism that successfully challenged DOMA, the groundbreaking case of Windsor vs. The United States is one about death rights. When Edie Windsor’s partner of over 40 years, Thea Spyer, passed away, Windsor found herself in a precarious position; Spyer had left Windsor her estate, but was not considered to be a “surviving spouse,” the term spouse referring “only to a person of the opposite sex who is a husband or a wife” under DOMA.   These legal restrictions famously cost Windsor $300,000 more in inheritance taxes than she would have been charged if she and Spyer had been in a heterosexual marriage. In other words, the “price” of being LGBT in the United States had a concrete figure, which Spyer’s attorneys used to wage their suit against the Defense of Marriage Act. Of course, this figure does not even begin to address the psychological price of fulfilling the role of abject within a normative society, a price which is affected differently due to a host of other intersecting identities, and which would be impossible to calculate in financial terms.

However, this recognition helps to expose the underlying conservativism behind the politics of the fight for marriage equality, when the overturning of DOMA by the Supreme Court is understood as the major victory from which true equality will stem. Marriage equality framed this way is about determining legal kinship for purposes of inheritance. Recognizing kinship relations between non-biologically related adults is a legal process in the United States. Kinship has many high-stakes, which are often felt most in times of crisis; kinship bonds matter when they dictate who has access to the physical body of another person, whether that body is living, injured, or dead. Despite the legalization of marriage in individual states, same-sex couples must have a durable power of attorney in addition to multiple (and costly) documents enabling each other access to not only to each other’s finances, but also their bodies in the case of injury or death. Because, according to U.S. Supreme Court Case De Sylva v. Ballentine (351 U. S. 570 (1956)), “there is no federal law of domestic relations,” the jurisdiction of many of these types of (non-tax related) claims belongs to the individual state (and thus the slow state-by-state legalization popping up across the country). While DOMA’s repeal allows for tax breaks and federal tax laws that allow for federal inheritance taxes to benefit same-sex couples, there are many death rights that are still lacking for non-normative families; in other words, there’s still work to be done. Thinking about marriage equality through death rights sharpens the politics at play, allowing us to see what rights are still lacking and what rights are about protecting other types of privilege not available to all queer people (socio-economic privilege, and white privilege most explicitly).

This presentation will detail and expand the above argument, while placing a death rights/death equality political platform in historical context.


Part of panel Birth, Life, and Death in LGBTQ Families
October 2, 2016, 09:00–10:45