Gay marriage goes on trial
For those of us who have been blessed or cursed with a critical intellect, pondering issues such as Proposition 8 and the concept of gay marriage is an exercise in intellectual reflection, and not something one can opine on in any way lightly.
This piece is for those who, like myself, to take philosophical jurisprudence and ideology seriously enough to spend considerable time reading up on these issues.
A very unique gay perspective , in the form of a Reply to Andrew Sullivan, can be read here.
On Nov. 4, 2008, when the polls closed on the West Coast and media outlets reported that California voters had passed Proposition 8, gay-rights supporters across the country were stunned. How could the purported gay haven of California -- home to Hollywood, Harvey Milk, and the Castro -- have rejected same-sex marriage?
It was an odd cultural moment, infused with the countervailing energy and promise of Barack Obama's victory. While progressives across the country danced in the streets chanting, "Yes We Can," angry gay-rights supporters gathered on the steps of the state Capitol in Sacramento carrying signs that expressed their indignation: "No More Mr. Nice Gay." As Obama declared in his victory speech, the ground had shifted, but in the Golden State, it had moved in opposite directions.
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There is something farcical about having a court make a determination about the nature of human sexuality and the purpose of marriage. These are perennial topics of philosophical and academic debate, hotly contested in college classrooms, across the dining-room table, and sometimes on cable news. The soaring rhetoric of the culture wars has made cameos in the courtroom, but most of the discussion has been prosaic. The law, for all its gravitas, is ultimately about deciding who has to pay for the fender bender, not whether it would have been better to walk.
Prop. 8's defenders seem most self-assured when speaking in broad axioms. According to the motion filed by the defense in Perry, "the purpose of marriage [has] always been to promote naturally procreative sexual relationships," and "every civilized society in recorded history [has] limited marriage to opposite-sex relationships." But when asked concrete questions, as the defense was at a pre-trial hearing in October, lawyers have been hard-pressed to come up with an answer.
"All right, let's play on the same playing field for once," Judge Walker told lead defense counsel Charles Cooper. "I'm asking you to tell me how it would harm opposite-sex marriages."
"Your honor, my answer is: I don't know," Cooper responded. "I don't know."
Thompson explains that the difficulty in answering the judge's question stems from the fact that same-sex marriage is a relatively new phenomenon, one that has not been studied extensively by social science. But in the same hearing, Cooper was also at a loss when Judge Walker asked him to justify the view that marriage was for procreation.
"The last marriage that I performed ... involved a groom who was 95, and the bride was 83," Walker said. "I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?"
"No," Cooper answered.
Outside the courtroom, gay-rights opponents have very different answers to Judge Walker's questions. "The law affects marriage primarily through its capacity to 'name a shared reality,'" says Maggie Gallagher, president and founder of the National Organization for Marriage, which opposes same-sex marriage. "Gay-marriage advocates understand this on their side of the issue -- the name matters, because words matter, symbols matter, naming reality matters."
The quandary for the court in January is, in effect, how to name a reality that we do not all share. The real fight is not over marriage itself. Perry v. Schwarzenegger is only about gay marriage in the sense that Roe v. Wade was about privacy, or Brown v. Board of Education was about school choice. The case is really about the place of gay people in society. . .
But it's important to remember that Roe did not guarantee gender equality, nor didBrown end racism in America. Women are still promoted and paid less than men, and a large share of African Americans are still entrenched in poverty. After the stinging marriage-equality setback in Maine on Nov. 3, gay-rights supporters are looking to the federal courts with renewed hope. But Perry will not be a panacea, either.
As Eskridge points out, the best turn the Prop. 8 case could take is that it would be rendered moot by California voters in 2010 or 2012. But even if Boies and Olson lose the case, it would not be the disaster that some gay-rights supporters fear. A Supreme Court loss could galvanize a movement that, at least in California, was dumbstruck that gay rights didn't just come as a matter of course. . .
The assumption among gay-rights supporters -- and the time frame that's often thrown around -- is that "in 20 years" we will have full equality. If anything, however, the Prop. 8 imbroglio and its legal fallout should serve as a reminder that equality isn't a once-and-for-all achievement. Rights can be rescinded, the ground can shift again. Nor is it an eventuality. Despite Martin Luther King Jr.'s assurance, the arc of history does not bend in any direction -- much less toward justice -- on its own.
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Negros Oriental, Philippines