Last Thoughts of the Day

I've left the live-blogging of the trial today--missing a new UCLA professor, who is considered the "rock star" of gay, lesbian and transgender studies. I'll catch up tomorrow. But one of the factoids that struck me was that if gays were allowed to marry, then one witness said they would only constitute about 2% of the married population. Hardly reason to run from the room. Asked about de-valuing hetersexual marriage, I'll paraphrase one witness," It's unlikely that Bruce will say to Ann after 30years, since Joe and Frank are getting married, that's it for us--we're getting a divorce."

But concerns about the timing of the case can be found in Margaret Talbot "A Risky Proposal" in the January 18, 2010 issue of The New Yorker. Talbot goes into the reservations voiced by the A.C.L.U., the Human Rights Campaign, Lambda Legal and the National Center for Lesbian Rights about the strategy of this case. They argued the Supreme Court doesn't get too far ahead of either public opinion or the law in the majority of the states. While Olson seems focused on Loving v. Virginia, the Supreme Court case on interracial marriage, these advocacy groups were concerned about Bowers v. Hardwick, where the Supreme Court stunned gay rights advocates and upheld Georgia's antiquated law against sodomy. It took the Supreme Court seventeen years before it revisited the issue in Lawrence v. Texas, when it overturned by 6-3 Texas' sodomy laws. Two-Ton Tony Scalia said that the court had aligned itself with the "homosexual agenda" and that Americans are "protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

Gay activists note that California passed in 1964 an anti-black referendum. They fear a Supreme Court case before its time. Today, there are 7 Catholics on the Supreme Court and only two days ago Pope Benedict issued another anti-gay statement. Instead, activists wanted a chance to win a few referenda on the issue and wait until the composition of the Court changes. But people who support Olson's approach point out that some 40% of Americans support gay marriage and more than 50% support civil unions. This compares to only 20% in favor if interracial marriage during the time of Loving v. Virginia. Younger Americans support gay marriage at about 58% and that percentage is growing every year. Scholars on the issue point out that if people are converted in one direction, it's always toward gay marriage. In five years, they expect a majority will support gay marriage because of generational changes and "attitude adjustments". It should be noted that the young seem to be less supportive of the right to choose concerning the abortion issue.

Today, only five states permit gays to marry, while five others such as California have civil union or domestic partnership laws, that confer some of the same benefits without the freighted significance of marriage. But, a few words of caution, after the Supreme Court of Hawaii found that a ban on gay marriage was discriminatory, 29 states passed amendments prohibiting gay marriage. And the backlash culminated in 1996 Defense of Marriage Act (DOMA), which Bill Clinton signed into law. A marriage was defined as between a man and a woman. Ted Olson firmly believes that DOMA is unconstitutional. I agree with him.

Can we read anything in the Supreme Court's prohibition of television and Youtube at the trial? Perhaps, they did not want to color their own opinions. But I believe in the words of Olson it would have been a teachable moment because the only ones who appear normal and solid citizens are the gay couples and the professional experts. The anti-gay lawyers reek of bigotry and hypocrisy. And worse, they are ill-prepared and are relying on the court simply to reaffirm the traditional prejudice of the society. What puzzles me is that the Judge keeps asking about why the state should be involved in marriage in the first place? He's looking for a backdoor escape that might not exist.

Perry v. Schwartzenegger demonstrates why the courtroom is a fair better venue to resolve issues of basic rights than the ballot box. But I do find Olson a bit naive when he talks confidently about how the Supreme Court will take this case seriously and will not want religious attitudes cloud their judgment on the case. Like many old-time conservatives, Ted has lost touch with how theocratic the right has become. But in this courtroom we are getting to hear the history of discrimination against gays and lesbians, the latest studies about the habits of long-time same sex couples and how child abuse has little to do with gay male behavior in particular. And, alas, we're learning that lesbians and gays seem to be born that way, contrary to the beliefs of the religious right.