Gay Marriage and the Social Good
While Wiz has been training his eye on bright (artificial) foreign lights, I’ve been sitting in a small Bavarian town casting my gaze back toward the homeland, specifically the historic Prop 8 decision that was handed down by a federal court on August 4th. Now that we’ve had a moment to catch our breaths after the initial excitement over Judge Walker’s ruling that Prop 8 is unconstitutional, it’s time to take a look down that long, inevitable road toward the Supreme Court. Will the decision hold? Will the Supreme Court, on being called to judge one of the most fractious cultural arguments of our time, stick its neck out and declare all bans on gay marriage unconstitutional? I’m a bit wary, because I think this post risks taking on a tone of cheerleading optimism, but similar to Dahlia Lithwick over at Slate, the substance of Judge Walker’s opinion makes me think that gay marriage has a very good chance of winning over SCOTUS. Lithwick emphasizes the fact that Walker’s ruling uses much of the same language that Swing-Vote Kennedy has used to argue that morality is not a proper basis for discriminatory legislation against gays. But, in a blatant plug for my profession, what I think puts meat on the bones of this lofty language is the role historians played in the court room, clarifying what marriage and the state’s interest in marriage have historically been about, distinguishing between long-term structural features and the stuff of moral fluff.
Interestingly, gay rights orgs such as Lambda Legal and the ACLU initially criticized the two lawyers who brought the case to the federal courts a year ago. A lawyer for Lambda Legal warned that the non-civil-rights lawyers didn’t realize the obstacles they would face at the federal level. I remember being surprised by their hesitancy and criticism at the time and I think Judge Walker’s opinion has justified my skepticism. As civil rights orgs, Lambda Legal and the ACLU should have been the first to recognize the potential to win this fight on the constitutional level. After all, there’s been a history, particularly in the realm of home and bedroom, of SCOTUS pushing civil rights a few steps ahead of the zeitgeist. It was the ACLU that in 1963 filed a motion for the Lovings, an interracial couple, to overturn Virginia’s miscegenation law, resulting in a 9-0 Supreme Court ruling that the law violated the 14th amendment’s Due Process and Equal Protection clauses. A married couple’s right to privacy in the bedroom (and to contraception) was established, again under the 14th Amendment’s Due Process Clause, by SCOTUS in 1965 in Griswold v. Connecticut (CT blue laws weren’t always just about no-beer-buying Sundays), and a similar right for unmarried couples was established with Eisenstadt vs. Baird (1972). Griswold first established a citizen’s right to privacy in a big way, and it has since become the foundation for reasoning in both Roe v. Wade and Lawrence v. Texas. The Due Process Clause of the 14th Amendment was key in all of these, as it was in Judge Walker’s ruling last week.
And then of course there are the historians. In Lawrence v. Texas, the historians’ amicus brief was key in clarifying that sodomy laws had historically not been intended to target only gay couples and that “the governmental policy of classifying and discriminating against certain citizens on the basis of their homosexual status [was] an unprecedented project of the twentieth century.” Given how much opponents of gay marriage like to throw around terms like “historically” and “traditionally” and “gay marriage will destroy the institution of marriage as we know it,” I thought it was about time that historians actually had a properly public forum to respond to the “historical purpose of marriage” soundbites that cable news commentators repeat ad nauseum. And I was especially excited when I heard that the court would hear testimony from George Chauncey and Nancy Cott, both of whom helped author the Lawrence vs. Texas amicus brief. Chauncey has had a long history of political activism, authoring Why Marriage: The History Shaping Today’s Debate over Gay Equality, and Nancy Cott literally wrote the book on American marriage: Public Vows: A History of Marriage and the Nation. Having been a student in one of Nancy Cott’s seminars, I also just figured she’d be pretty badass on the witness stand (sadly since SCOTUS banned cameras in the courtroom, we can’t actually see her in action, but you can watch reenactments done by a bunch of crazy LA actors of the entire trial here). It was actually in Cott’s seminar that I first realized that Prop 8 supporters’ conservative-traditionalistic view of “what marriage is” isn’t just completely out of touch with what marriage is today, but doesn’t cohere with what marriage once was. Take one read through Clare Lyons’ Sex among the Rabble: An Intimate History of Gender and Power in the Age of Revolution, Philadelphia, 1730-1830, where she describes how women could self-divorce their husbands simply by placing an ad in the newspaper, and all purported claims about the “tradition” of American marriage quickly take on a tinny sound.
And this is the point, this is why it made sense to go to the federal/constitutional level with the question of gay marriage. While assertions of “tradition” and “history” and “God” and “morality” may carry political weight, enough to overturn gay marriage in a state that had been allowing it without any great apocalyptic chaos, such abstractions either get clarified or become meaningless in a court of law dealing with constitutional questions. In his opinion, Judge Walker wrote, ““Tradition alone… cannot form the rational basis for a law.” But of course some sort of tradition must form the basis of law, particularly if a law addresses a fundamental right under the Due Process Clause of the 14th Amendment. After all, “fundamental right” sounds nice, but what exactly does it mean? To determine whether a right is fundamental, the Court inquires into whether the right is rooted “‘in our Nation’s history, legal traditions, and practices.” Thus the opportunity to clarify what features of marriage have and have not held constant over the centuries.
The media has emphasized that this was a trial of “expert against expert,” a trial based on 80 “findings of fact.” This raised the eyebrows of Kevin Drum over at Mother Jones who wanted more legal doctrine, since “that’s what’s going to matter when this case gets to the Supreme Court.” And I can’t say my own eyebrows weren’t initially raised, predictably as someone who likes a good helping of Foucault served with her history, but also as someone who’s been working on a pharmaceutical trial where competing epistemological claims to “fact” served to confuse rather than clarify justice. But I think Kevin Drum and my own Foucaultian-laced gut were wrong. Studies on “what type of household is best for the child,” even if the answer is Judge Walker’s “beyond any doubt… parents’ genders are irrelevant to children’s developmental outcomes,” will always make me cringe, but in the end the “facts” that mattered most in this trial were ones that deconstructed erroneous notions of “traditional marriage.” Studies on the effect of gay parents on children were a moot point, as the judge noted, since Prop 8 has never actually been about children (there is no distinction between gay and straight couples in Cali adoption law), and marriage has never been about whether a couple could procreate. Hence, Cott:
There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry.
And then, gloriously, something I’ve long been waiting for, Judge Walker cites from Scalia’s dissent in Lawrence v. Texas to support his case:
If moral disapprobation of homosexual conduct is ‘no legitimate state interest’… what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
I wonder if Scalia is choking on his tongue now.
It was Cott, in the end, who provided the definition Judge Walker used to define the long-term structural features of marriage, which he emphasized have allowed for dynamic change in the institution. In summary, marriage is:
 A couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership.  The state’s primary purpose in regulating marriage is to create stable households [which help provide more stable, governable societies].
Ok, so two things. First, why do I think, contra Drum, that this finding of historical “fact” will provide some big doctrinal guns when the case gets to the Supreme Court? Mostly because I think, per Walker and contra Scalia, the Supreme Court no longer recognizes moral disapprobation as a reasonable state interest, particularly once such “moral traditions” are revealed to have been just the work of specific historical moments, rather than an innate thread running temporally and spatially throughout our society. Once it was established that discrimination against gays had a timeframe and couldn’t call lack of history as its alibi, the path was set toward gay marriage. Historicizing a discriminatory practice that categorizes a group of people and impedes on their private lives is essential to the deployment of the Due Process Clause in the 14th Amendment. And thus the importance of this moment in Judge Walker’s opinion, where he historicizes even that which, unlike the criminalization of gay sexual practices, has never not been part of our nation’s history (that is, there’s never been a time when two men or two women were actually able to marry):
The evidence suggests many reasons for this tradition of exclusion, including gender roles mandated through couverture, social disapproval of same-sex relationships, and the reality that the vast majority of people are heterosexual and have had no reason to challenge the restriction.
All of which have reached the end of their tether.
Second, I think this ruling is politically important because I do believe in the power of legal clarification to drive political change. When faced with the political, Prop 8 soundbite that “we must preserve the tradition of marriage,” opponents of Prop 8 now have their own legally-sanctioned soundbite that the only stable historical feature of marriage has been its role in tying together two committed, consenting adults and to support the state’s interest in stable households/society. I’m aware of the danger in emphasizing this fact too much, and bristle at the idea of pandering to conservative America’s idea of the domesticated home. This of course nudges us toward the question, “Why marriage?” As Louis Bayard at Salon writes, “The wedding trope is particularly nonsensical because, for several generations, gay couples have been showing America how marriages can be created without benefit of weddings,” (anyone who makes weekend sport of the NY Times wedding section can attest to this) and it’s important to recognize the danger of maligning both straight and gay couples/citizens who decide never to enter into matrimony. Intellectually, sentimentally, I’m on board here. But the trial itself demonstrated how much cultural weight marriage still holds in our society (as opposed to, for instance, many European countries), and marriage is still the institution that, legally and symbolically, most tightly binds two unrelated adults together. The political campaign for gay marriage, instead of running Apple-vs.-PC-ripoff ads and tepidly toeing around this idea, should start brazenly showing gay marriage as threading together the fabric of family and community. In entering the structure of marriage, gay couples will of course change some of its substance, but in a direction that pushes back against the extremely reactionary and gendered features that the religious right has been working to inject back into marriage, and which I would wager most Americans, when it comes down to it, are not on board with.
Hence the importance of the final moment in Walker’s ruling when he argues that one of the main problems with banning gay marriage is that it legally reinstates gender roles into an institution that since the 1970s has been defined only as the union of gender-neutral “equals.” The removal of gender from marriage, most markedly through the elimination of couverture laws that once subsumed a woman’s property and legal standing under her husband, is an obvious way in which marriage law has drastically changed over the centuries. Of course when talking about “tradition” or “biological parenting,” at root opponents of gay marriage have always been evoking traditional concepts of gender within marriage. But I think there’s a strategic discursive shift to be made in driving home the point that banning gay marriage isn’t just about sexuality, it’s about turning back the clock on gender roles for all American spouses. Perhaps I’m being overly optimistic, but I think there are many heterosexual women who may feel apathetic or mildly negative on the issue of gay marriage, but who would be less willing to give up the legal ground that neutralizes and equalizes their marital relationship. Given my recent disgruntlement with the late Tony Judt’s take on identity politics, I’m a little surprised to be saying this, but I think in the end gay marriage supporters could benefit from taking a page from Judt’s book and thinking more in terms of the collective than the individual.