By Sally Kohn

As the law plays catch-up, Judge Vaughn Walker includes an eloquent analysis of changing gender roles in declaring Proposition 8 unconstitutional. Commentator Sally Kohn argues that the next step should go even further.

The recent Federal District Court ruling declaring Proposition 8 unconstitutional does exactly what opponents of marriage equality fear—legally redefines marriage for all Americans.  Finally.  Most Americans of all orientations and ages have, for a long time, been redefining marriage on our own.  It’s about time the law catches up.

Sure, the Proposition 8 ruling was a wonderful victory for same-sex couples in California and nationwide.  Judge Vaughn Walker eloquently wrote that “Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”  This, like much of the ruling, brought tears to my eyes—a long-awaited herald of justice in a nation too often haunted by narrow intolerance.

But Judge Walker also wrote, “The evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage.”  Every heterosexual American couple that isn’t predicated on the burly man going out to hunt while the obedient woman stays home to pop out children understands this ruling.  The idea that traditional marriage is between one traditional man and one traditional woman, each playing traditional roles, was extinct in most American households long before talk of gay marriage entered the scene.  In an era of working moms and metrosexual men, the idea of marriage as a one-size-fits-all straight jacket (pun intended) is plainly outdated.  Married straight men everywhere who have cooked breakfast or changed a diaper, married women nationwide who have worn pants or (gulp!) been able to maintain their own finances should applaud Justice Walker’s ruling, too.  Accordingly, you’re now officially as central to the American marital landscape as Newt Gingrich, his current wife and his two ex-wives.

For myself, as someone in a same-sex couple, the official endorsement of my relationship’s equality is an important and lovely engagement in the event that I ever opt for state recognition of my romantic life.  But the fact is that for millions of Americans like me—both gay, straight and in the vast hinterlands in between—the little box of traditional marriage is too constricting for our evolving notions of love and partnership. Judge Walker had it half right.  Modern heterosexual couples are indeed pushing the traditional boundaries of marriage.  But perhaps the next step isn’t to, once again, expand the otherwise narrow definition of marriage but to altogether abolish the false distinction between married families and other equally valid but unrecognized partnerships.

No, that doesn’t mean I want to marry three women at the same time or a goat.  It means that I think I should be able to decide what constitutes my family—whether it’s me and my same-sex partner and our toddler, or me and my elderly mother and father, or me and my best friend who want to care for and love each other but not necessarily be intimate.  The job of the state is to protect my family and our rights—not decide that two parents plus kids makes a family and everything else is an exception to the rule at best.

So, for instance, when the government of Canada was charged with expanding the country’s conventional definition of marriage to include recognition of gay and lesbian couples, a commission was appointed to study the best path to equality.  The commission came back with a startling but sensible option: get rid of marriage.  Not at the religious/ceremonial level—you can still have your off-white dress and dance party—but at the governmental level.  I would think anti-government conservatives would certainly agree that the government has no business telling me how or with whom to form a family.  For the rest of us who otherwise value the role of government in our lives, benefits and rights can as easily be based on family functions, not forms.  If I am my best friend’s primary caregiver, then I should be able to sign up to be one of, say, three people who have hospital visitation rights.  If I want my closest aunt to be my Social Security beneficiary, why should the government stop me from signing her up?  If I can use my cell phone to vote for American Idol, I’m sure I can press a few keys and designate my next of kin.

Anthropologist Gayle Rubin has written brilliantly on how society divides us all into privileged in-groups and excluded and marginalized out-groups.  Historically in the United States, heterosexual couples were the in-group—but particularly certain kinds of traditional heterosexual couples, where the man earned all the money, they had lots of kids, the family was well-to-do, the kids went on to be financially successful. We have a certain image ingrained on our collective unconscious of what the “good” white picket fence (and white skinned) family means in America.  In the Proposition 8 ruling, Judge Walker is quietly arguing that the boundaries between our traditional notions of the “good family” are already being blurred, not by ballot measures or court rulings but by the natural evolution of gender roles and family norms in America.  He uses this reasoning to say legal marriage should also be expanded.  But that merely expands the in-group category a little more.  Grandparents raising their grandkids, unmarried people on disability living together, single moms, cohabitating but unmarried couples—they are all still, formally and culturally, in the outer circle.

The language of the Proposition 8 ruling is a victory for family diversity of all shapes and sizes.  Yet the gay movement’s aim to expand the privileged category of marriage rather than formally redefine state marriage and extend all the rights and privileges of marriage to all family forms does little to dent the in-group/out-group superstructure in which homophobia and heteronormativity fester.

All movements for equality struggle with one essential philosophical dilemma:  Are we fighting for the right to be the same or the right to be different?  Equal treatment and government benefits for gay and lesbian couples should not be based on whether couples conform to limited notions of marriage and family, whether antiquated or updated.  While certainly worth celebrating, the Proposition 8 ruling says that gay people are equal to straight people as long as they act like straight people. But the fundamental right to be treated equally, even if you are and act different, remains beyond reach.  In the meantime, don’t hold your breath for an invitation to my wedding.

The views expressed in this commentary are those of the author alone and do not represent WMC. WMC is a 501(c)(3) organization and does not endorse candidates.