I don’t know about the rest of you, but for me the most exciting thing in the news is Perry v. Schwarzenegger, the lawsuit to overturn California’s anti-gay Proposition 8. (You can find a fairly complete background of this case in The New Yorker).
The trial began Monday, with testimony from the two couples (one lesbian, one gay) who are suing the state of California for equal treatment. On Tuesday, Harvard historian Nancy Cott testified.
First, Professor Cott provided a detailed historical account of how marriage restrictions based on race, ethnicity, and immigration status have been used “punitively” – to stigmatize and demean disfavored groups – in the same way that Prop 8 now stigmatizes same-sex couples. When these kinds of laws are enacted, she explained, many people believe they simply reflect “common sense” or God’s will. Only later is it fully apparent that they are in fact based on a failure to appreciate the full humanity of certain groups. The same is true of Prop 8.
Second, Professor Cott explained that in the past, marriage law imposed strict gender roles that sharply distinguished the legal rights and duties of wives and husbands. For example, at one time, married women were unable to sign legal documents or testify in court, because they were not considered to be individual citizens – once married, a woman had no legal identity apart from her husband. But today, the law recognizes that all adults should be given equal rights regardless of gender and should be able to choose for themselves how to allocate duties in a marriage. Because modern marriage law is gender-neutral in this way, permitting same-sex couples to marry doesn’t change the law’s basic structure.
Finally, Professor Cott showed that marriage has changed significantly over the years, and that most of those changes involve “shedding inequalities.” But the central function and purpose of marriage – to enable adults to create stable families that provide enormous benefits to the couple, to children, and to society – has endured. Professor Cott testified that based on the historical evidence, permitting same-sex couples would not undermine marriage, but instead would strengthen it. Both couples and the larger community would benefit.
Yale Professor George Chauncey also testified Tuesday; his testimony will continue Wednesday.
In the afternoon, Terri Stewart questioned Dr. George Chauncey, an expert in LGBT studies. Dr. Chauncey gave a lengthy discussion about discrimination and oppression of gay people in America.
Dr. Chauncey showed how the themes of Anita Bryant’s “Save Our Children” campaigns in the 70’s were successfully carried into the 80’s and 90’s and are the central themes of Proposition 8. He sees them as part of a continuum.
Stewart: Do you believe Prop. 8 ads perpetuate the stereotypes of the history you describe?
Chauncey: I think they do, but they are more polite than the Anita Bryant ads. Society has changed such that what you can say in polite society is different, but most striking is the image of the little girl who comes in to tell her mom that she can marry a princess. There’s a strong echo of this idea that simple exposure to gay people will lead a generation of young people to become gay.
This will be the fullest trial to date of the marriage equality issue, with both sides calling and cross-examining expert witnesses. (David Blankenhorn will be appearing for the anti-gay side.) One interesting question is whether or not the trial will be broadcast on YouTube; the Judge wants it to be, but Prop 8 proponents are trying to get the Supreme Court to forbid it. The Supreme Court has put a stay on the YouTube broadcasts, and will issue a final ruling sometime soon.
Overall, I think this lawsuit is a bad idea; it’s likely to go to the Supreme Court, and I doubt the Supreme Court (or, more accurately, Justice “swing vote” Kennedy) will vote for marriage equality. In the New Yorker, Nan Hunter (whose blog is excellent, btw) is quoted:
Nan Hunter, a law professor at Georgetown University, is skeptical about Olson and Boies’s chances. “As a purely formal matter, one could argue that Olson and Boies are correct,” Hunter said. “But invalidating roughly forty state laws that define marriage as between a man and a woman is an awfully heavy lift for the Supreme Court, and especially for Justices who take a limited role of the scope for the judiciary.” She added, “I fear that their strategy is: Ted Olson will speak, Anthony Kennedy will listen, and the earth will move. I hope I’m wrong about this—they’re excellent lawyers—but I fear, frankly, that there’s more ego than analysis in that.”
But sometimes unexpected things happen; maybe this time justice will win out. In the meanwhile, I expect the trial will be fascinating.
It’s going to be very interesting to see what the legal arguments are on both sides.
Man, if I recall, George II wanted to put Olson on SCOTUS but word came down from the Dems that they’d block that one as too extreme. So we got Alito.
Well now it turns out the Dems were right; he is extreme, but just not the way they thought. We could’ve had a conservative justice who would’ve ruled same sex marriage bans unconstitutional under the equal protection clause, making the odds for 5-4 victory more realistic. What a missed game-changer.
It’ll be very interesting if the legal arguments on either side prove to be interesting. I sense the legal arguments — “It’s just a political question” vs. “It’s an equal protection question” — are pretty well known.
Rather, the aspects that interest me are the politics. I suspect the California court will strike down Prop. 8 as violating equal protection. I suspect the Supreme Court would be disinclined to uphold this finding. But what will they do specifically?
1. They could simply draft a decision saying that it’s a political question not governed by the equal protection clause, or that the state’s interest in restricting the availability of marriage is sufficiently great to pass the test the court determines to be applicable (intermediate scrutiny?).
But the Justices are not stupid; they can see the trends of popular opinion. Do they really want their legacy to a document that will stand forever in the company of Dred Scott, Plessy v. Ferguson and Korematu as a testament to weak-kneed judges capitulating to populist bigotry, and the sophistry of legal reasoning?
2. Alternatively, the Supreme Court could simply decline to hear the case. In that case we’d end up with pretty much what we have now: same-sex marriage is permitted in some states and barred in others.
Arguably the most important aspect of the trial, therefore, is not what happens in the court but what happens on UTube. If the public is exposed to a steady stream of video depicting the injustice of prohibitions on same-sex marriage — regularly trotted out on news shows because, due to the trial, these depictions are now “news” — this could help sway public opinion.
The other important aspect of the trial may also be timing. If the economy revives by the next presidential election (following the pattern Reagan enjoyed), Democrats may again be on the ascendancy and people may be feeling less threatened by change. In this case the Supremes may read the tea leaves, figure that any decision they render against same-sex marriage was going to be short-lived anyway, and simply acquiesce to the inevitable.
Screw The Crucible; every American highschooler should be required to see the musical The Music Man. Fortunately, many of them do.
For the uninitiated, the show centers around a lovable con man. Here’s his con:
1. He arrives in a town and identifies something new (such as a pool hall).
2. He persuades people that this new development is the first sign of a trend that will imperil their children and undermine the authority of the older generation, and that only a foolish or heartless parent would be indifferent to this threat. The parents’ initial skepticism is completely overwhelmed by their concern for their children – as well as their desire not to appear foolish or heartless to their neighbors. To avoid this appearance, rather, the parents make a public display of their righteousness by competing to denounce the new threat in the strongest terms. As accounts of the threat grow, mass hysteria ensues.
3. In the face of this hysteria, the con man persuades people that the only way to save their children is to launch a new, expensive program of traditional, wholesome activities (such as a marching band – and by sheerest luck, he happens to be a sales rep for a band supply company….)
Alas, because every aspect of this con is played up to be as preposterous as possible (and because the conman is also portrayed as the hero), I sense many people fail to see that the show is designed to lampoon populism. The con contains all the classic elements of a fundamentalist movement: people threatened by change taking extraordinary measures to maintain a way of life from a real or imagined idyllic past, even if this means imposing this way of life on others.
Much the same story is told in the film Leap of Faith. But since The Music Man I haven’t seen a clearer popular account of the problems of populism until – Wicked? (Admittedly, my ratio of theater/library time may be different than yours….)
The Supreme Court will strike down gay marriage bans on the same day it strikes “Under God” from the Pledge of Allegiance.
(For the record, the case against “Under God”, were it not heavily politicized, would be so strong that no appeals court would even bother to hear the case. I’ve read the arguments, and “Under God” is as blatant a promotion of religion as you can get; nobody disputes that it was added to the Pledge in the 1950s for the express purpose of denigrating “godless Communism” for its atheism. It’s just that any judge who actually does strike it down will be lynched, figuratively speaking.)
(Getting further off-topic, is it possible for a judge to avoid issuing an unpopular decision by hearing the case and then simply never making any ruling at all, leaving the outcome “pending” indefinitely?)
You never know with these things. The District Court judge presiding on the case, who most observers think has been extremely friendly towards the pro-equality side, was a Reagan nominee opposed because he was a member of an all-male club and represented the Olympics in a lawsuit against the Gay Olympics.
I don’t know about upper courts, but that’s possible here in New Hampshire. It’s called “placing it on file without a finding”. It’s neither conviction or acquittal, and judges use it to avoid having to make a decision. Practically speaking for the defendant, in most ways it’s an acquittal, since no penalties accrue upon the … er … lack of a finding.
Grace
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