Friday Gay Blogging, Part I

I'm sure there will be more. In fact, I know there will be more.

First on the list, this, from B. Daniel Blatt at Pajamas Media. I've had exchanges with Dan in the past and found him to be thoughtful and intelligent, if somewhat reluctant to dig a little deeper into questions. I take his reaction to be that of a responsible, thoughtful, reasonable conservative gay man. Needless to say, I disagree with a large part of what he's written.

Going over the opinion, I appreciate the majority’s recognition that marriage is more than a right. It also involves the granting of state privileges while imposing certain responsibilities on the partners in the union. But the court overstepped its bounds in redefining (for purposes of state law) an institution which has long been limited to monogamous relationships between individuals of different genders. In a democracy, the people and their elected representatives should make decisions of this magnitude.

I've heard this argument too much, and I've never seen any support offered for it other than the bald assertion, as Blatt does here, that "the people should decide." No one has been able or willing to bring forth the document, court finding, legislative history, or any other bit of evidence that would put some weight behind this. The fact remains that this nation has always limited the sovereignty of the people, particularly when it comes to establishing the rights of disapproved minorities. Once again, boys and girls, this is not a "democracy," pure and simple, it is a representative democracy structured as a republic, which means in practical terms that the will of the people is expressed through their elected representatives and is subject to the restraints imposed by the Constitution. It is the job of the courts to evaluate laws against those restraints. It is more than disingenuous to claim that legislatures recognize those restraints and will abide by them (witness the legislative history of any of the laws regarding teaching of evolution in recent years), and so the courts become doubly necessary to safeguard our interests and our rights.

Justice Kennard addressed the "judicial activism" trope directly:

Justice Joyce L. Kennard rejected the charge of judicial activism. The architects of both the state's and the nation's constitutions acknowledged that "deeply rooted prejudices may lead majoritarian institutions to deny fundamental freedoms to unpopular minority groups," Kennard wrote. ". . . The most effective remedy for this form of oppression is an independent judiciary."

I rest my case.

Back to Blatt:

It’s not just the court’s bypassing the people’s will that troubles me, it’s also some things the court said about marriage. The court refuses to rely upon the “historical” understanding of marriage, noting that “prohibitions on interracial marriage” are also part of the historical record. What it neglects to mention is that those laws were statutory creations, while the historical understanding of marriage as a union between one man and one woman goes back for millennia.

This is wishful thinking from the right. If you followed the debate on marriage at Box Turtle Bulletin recently (here's Jim Burroway's wrap up, with links to the various posts), it's quite clear that the "traditional" understanding of marriage as espoused by the anti-gay right boils down to "this is the way it was when I was a boy" (if, indeed, it was really like that at all). This is not a statement one can accept without question, mostly because it's just not true. Money quote, as Andrew Sullivan would say, from Bill Maurer, chair of the Department of Anthropology at UC/Irvine:

Since its beginnings as a scientific discipline in the 19th century, anthropology has documented the historical and cultural variability of marriage and family forms. From ghost marriages to “female husbands” to polyandry, polygamy and cousin marriage, the cultures of the world exhibit incredible diversity in how they manage the universal problems of cultural transmission and the reproduction and care of the next generation. Indeed, Lewis Henry Morgan, one of the field’s forefathers, documented hundreds of distinct kinship arrangements. For over a hundred years, anthropologists have continually surprised themselves and other Western observers with the diversity of family and marriage arrangements deemed sacred, valuable, and morally necessary for the reproduction of society.

Back to Blatt:

The court sees marriage as “a substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own.” But marriage has long been more than just a loving relationship. Such a definition would suggest that two friends — or even siblings — could marry.

Uh, Dan? The court repeatedly stressed the "family" part, which I see that you ignore completely. That was also a central concern in the Massachusetts court's decision in Goodridge -- the court found that the law discriminated against the plaintiffs' children. In fact, that has been a central issue in these kinds of cases since Hawai'i: the effect of lack of legal recognition on people's children, which is to say, against their families. (And please spare us the scary "incest" thing. That's tacky -- it's really tacky.)

The court goes on to make much of the notion of dignity:

One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.

Unless I missed it, the court did not cite the constitutional provision according such dignity.

Recognizing marriage has not — at least not until recently — been about according dignity to any couple in any loving relationship. It has long been a social institution joining together two individuals of different genders in a monogamous bond to promote a stable environment for the raising of children. Indeed, as I pointed out in a recent post, in all cultures (up until the present day) that recognize marriage, sexual difference has been “the defining aspect of the institution.” To be sure, some cultures allowed for same-sex marriages, but, in those cases, one of the partners had to live in the guise of the opposite sex in societies far more sexually stratified than our own.

I don't know what to think of this section. Either Blatt doesn't believe in human dignity, which I find a bit of a stretch, or he's just not thinking. The concept of the intrinsic dignity of individuals is basic to our entire system -- the very idea that people have inherent and inalienable rights rests on the idea of human dignity. If you have to have it spelled out for you, then all I can do is shake my head and make the sound that is generally rendered "tsk, tsk." (When it comes right down to it, as long as we're looking for constitutional provisions, I'd like to see the one that grants a right to marriage for anyone. Two can play the parsing game.) I have to take the "constitutional provision guaranteeing dignity" thing as a smokescreen hiding the fact that there's no argument there. The authors of constitutions have been quite deliberately vague when it comes to enumerating rights, simply because they were wise enough, thankfully, to realize that the world was going to change. The inclusion in our Bill of Rights of the Ninth Amendment was specifically to refute the idea that the rights enumerated in previous amendments somehow imposed a limit on the rights that were guaranteed. As for the "defining aspect," see above regarding the various forms of "marriage" documented by anthropologists.

All that said, I do believe marriage can evolve to include same-sex unions. Indeed, that evolution is already taking place. As gay and lesbian couples meet the obligations traditionally assigned to marriage and live together in monogamous relationships that are more than just loving, then we will find these unions treated as marriage.

But this evolution should happen naturally and not be imposed by a court. Advocates need to defend the merits of the institution rather than focus on the rights they believe are their due. Unless these advocates make their case to the people, they will find the people blocking the evolution of marriage beyond its traditional definition.

I find this troubling simply because it is so fuzzy. It's one of those right-wing arguments that can't be pinned down, mostly, I think, because there's nothing really there. The evolution of social institutions (which I regard as a sketchy metaphor to begin with) doesn't happen unless someone is pushing. We've seen that happen with every rights movement of the past hundred years -- everyone thought everything was fine (because it was "traditional") until somebody stood up and barked. And yelled. And pushed. The "traditional" definition of marriage isn't going to change until someone pushes, and one of the main ways in which people push those things in this country is through the courts. That's one reason we have courts. It's become a major reason to have courts. And the idea that this is being "imposed" by the court is pure sophistry: the majority in California quite carefully backed its arguments up with constitutional provisions and sixty years of jurisprudence based on those provisions, and as I mentioned above, that is the determining factor -- not the "whim of the people."

As for "the people" blocking the evolution of marriage, I find it almost impossible to take the results of scare campaigns by a bunch of well-financed thugs to be indicative of "the people." Blatt accords the anti-gay forces in this country much more respect than I do -- I've looked at their arguments and found them to be specious, and I've looked at their methods and found them to be reprehensible.

We need a conversation on marriage, not just arguments before courts in the various states. This conversation should not only help elucidate why gay people merit the benefits state recognition accords married couples, but also why marriage is beneficial for all people. Unless we have that conversation, our society will remain divided on the issue. Too many people will continue to believe that when gay couples seek the benefits of the ancient and honorable institution, they don’t recognize its obligations nor understand its meaning.

First off, you can't have a conversation with people who refuse to listen. Just read some of the reactions by the right-wing anti-gay organizations and note the way they've twisted the court's decision, rewritten the history of marriage, maligned the plaintiffs and gay people in general, and tell me we can have a "conversation" with these people. Just look at this comment from Matt Barber of Concerned Women for America:

If people who engage in homosexual behavior want to dress up and play house, that’s their prerogative, but we shouldn’t destroy the institutions of legitimate marriage and family in order to help facilitate a counterfeit.

You're telling me we can have a conversation with this guy? Maggie Gallagher is just as bad, Peter LaBarbera is, if anything, worse, Dobson, Sheldon, the rest of the usual suspects are spewing forth as expected. These are people who hold us in utter contempt, want to strip us of all rights, and in the more extreme cases, such as Ken Hutcherson, would be happy if being gay brought the death penalty. Who are we supposed to be talking to here?

(And as a footnote, one need only look at Glenn Stanton's responses to Patrick Chapman in the Box Turtle Bulletin series I linked to above to see the form that conversation would take: shifting definitions to suit the need of the moment, assertion in place of evidence, repeated assertions when the first assertions are debunked, change of subject when the going gets tough, debater's tricks instead of substance.)

Second, the arguments before the courts are part of the conversation, and there, at least, we can usually find an audience that will hear us. Dialogue in a nation of 300 million people takes place in living rooms, bars, family gatherings, around the water cooler, and also in the press, in the chambers of legislatures, and in the courts. It's all part of the conversation, and trying to cut off part of it does no one any good.

The way we have this conversation is to be public -- anyone who reads the news now is going to realize that same-sex marriage has been legal in Massachusetts for several years and the world has not ended, they are going to see couples who have been together for twenty, thirty, fifty years finally able to be married, they are going to see gay couples with their kids, they are going to see honest joy and they are going to see their friends and brothers and sisters and neighbors, and they are going to start taking the Dobson Gang with a bit more scepticism. It's already happening -- for the second time, anti-gay forces in Illinois -- hardly the most progressive state in the union these days -- have failed to gather enough signatures for an anti-marriage referendum (and there's a good chance civil unions legislation will pass this year), an anti-marriage amendment was defeated in Arizona (although they're trying again), New Jersey will probably pass a bill legalizing same-sex marriage within a year, and New York will probably follow suit. The way to deal with the backlash is not to duck and run, but to meet it head-on with a good strong dose of reality.

As you can see, I find Blatt's comments badly flawed, and I think his conclusion reflects a tendency I noticed recently in another post (which I commented on at the end of this FGB post): he seems to be happy to take advantage of what is gained by those he decries as "activists" while denying the need for their activism.

It goes without saying that the battle in California is going to be intense over the next six months, and I can only hope that everyone concerned with get out of their easy chairs and hit the streets.