Only four months out from Ann and my thirtieth wedding anniversary, I have to thank the gay and lesbian community for making marriage seem so exciting and important. In the watershed case on gay marriage being heard be Judge Vaughn Walker, Chief Judge of the District Court of Northern California, expert witnesses such as Yale's Prof. Nancy Cott gave an overview of the American marriage that made it seem we were all in a long historical evolution of a basic institution. It was only in 1920 that the Supreme Court ruled that "marriage was a fundamental human right", although this did not stop states from passing laws against interracial marriage. It is confounding to think that Barack Obama's parents could not get married in Virginia. And it was only three states that never passed laws against interracial marriage.
When Ted Olson, the former Solicitor General for the Reagan Administration, a founder of the Federalist Society and the lawyer who stole the 2000 election from Gore, expressed a desire to try the whole issue of gay marriage as a constitutional point gay activists were wary of his motives and suspect of the timing of such a challenge,arguing instead for mounting another referendum in California. But he has more than made up with it with his artful opening arguments in the case Perry Versus Schwartzenaggar. Olson spotted months ago that there is a fundmental problem of equality when California allows different classes of married people--the straights, the gays who were married when gay marriage was legal; and gays married in other states where it is legal. So what happens to lesbians and gays who want to marry but are prevented from doing so by law. How come some gays rate and others don't?
If you are interested in the case, follow the live-blogging at www.prop8trialtracker.com. Despite petitioning for television coverage of the trial, the Supreme Court of the US ruled twice to block coverage. They knew what they were doing. The anti-gay lawyers were amazing in some of their statements. Their argument is that my marriage would somehow be diminished if gays could married, marriage was for procreation and that not allowing gays to marry would protect children. The judge on the first day specifically asked the anti-gay lawyers how would gay marriage negatively affect heterosexual marriage. The answer:"I do not know. I do not know".
The first two days of the trial have been the best so far. Kris Perry and Sandy Stier, the Lesbian couple, brought forth the silliness of the 'protecting children" argument since they have four from previous marriages. Paul Katami and Jeff Zarrillo talked about the whole gay experience and how they reached a stage where they wanted to get married but the rug was pulled out from under them. The anti-gay lawyers shied away from grilling the lesbian couple because that would look bad. But they kept pressing the gay males on the issue of promiscuity and protecting children.
The first two days had alot of wrangling on what ads could be shown to the court. "The Storm", which showed a multiracial gathering of men and women fearful of gay marriage coming was tossed out because it was not used in the Prop.8 campaign. Also, the ads about teaching children about gay marriage--which I saw in Iowa and later in Maine--were also tossed. But alot of homophobic material was entered into the record.
There is a legal reason for establishing homophobia drove alot of the Prop 8 debate. The pro-gay lawyers have to establish that gays are a "subject class' like in race, a group of people who experience prejudice and are subject to discrimination. If the lawyers fail to prove this, then gays are like left-handed people and the court could uphold the ban on gay marriage. Actually, I think there are other legal reasons where one can side with the gay position that isn't dependent on the "subject class" issue.
Abit of a background here. I was around when civil rights great Bayard Rustin was forced to adopt his companion in order to protect his estate and his papers so they would go to the partner whom he loved and trusted. It was typical of Bayard to be practical about these matters but I admit that I thought it was somewhat demeaning to both the men. Later Andrew Sullivan wrote a book Almost Normal, which made the conservative case for gay marriage. Since I am basically libertarian on these matters, I didn't see what role government has in interferring in prohibiting two adults from entering in marriage. But also, when Andrew's book came out I thought "why should gays bother?" I've been known to wise-crack,"If you're against gay marriage, don't marry one." Finally, the Iowa Supreme Court decision, which I thought eloquently argued, struck the right note in my mind. The Iowa decision in typical Midwestern logic that the judges could find no harm was done to the State's interests by allowing gay marriage.
But Ted Olson and David Boies have made a stronge case for gay marriage and marriage in general. My wife and I did not marry to have children like many of my friends. On our tenth wedding anniversary we decided to have a child and what a wonderful event it was and has been. And, in no way, did I believe my role as a parent was to protect my child from child molesters. It simply was not an overwhelming issue where we live. But our marriage like many others had to do with a complex set of issues, which I was delighted to hear Dr.Cott point out in her expert testimony on marriage in America. Her testimony is well-worth reading in terms of the public aspect of marriage and how the oppressed embraced marriage. Her statements about newly emancipated slaves marrying in great numbers to assert their new status was surprising to me. But she was very good in knocking down the whole notion that marriage is solely for procreation and to protect children but instead invested the institution with a rich and complex social and psychological meanings that rang truer to me than the procreation crowd.
Dr. Letitia Peplau, a UCLA social psychologist,was sort of a let-down in a pleasant way. She studies same sex couples and found long-time relationships were monogamous, stable and improved a couple's health. In short, gay couples were --well--like straight couples. Challenged by the anti-gay lawyers, she also pointed out that American gay couples are more pro-family than their European counterparts. Both Peplau and Cott answered the question why marriage is different from domestic partnership relationships. This has always been seen as the cop-out for our politicians, who want to seem pro-gay but not upset the religious types. There are a whole host of differences that make marriage a more valuable both socially, psychologically and economically. I had never heard this articulated so precisely before.
The next expert witness was Historian George Chauncey, who detailed the persecution of gays in the United States and covered the ground from gays as security risks, the costs to the government of firing gay military personnel, the targeting of gay persons by our police using a number of laws, and the whole horror story of now both the society and our laws were biased against gays. I don't know whether to laugh or cry when the anti-gay lawyers asked," Well, you've had Brokeback Mountain and Will and Grace, doesn't that show gays are accepted now?"Or pointing to Barney Frank as an example that gays are accepted in all walks of life. And he pointed to Nancy Pelosi as an advocate for gay rights. So everything should be fine.
The last expert witness I've followed was someone who costed out gay marriages to see whether they were an economic detriment or plus for the states economy. I couldn't make out the gist of what he said. Legalizing gay marriage would be a short-term boom in terms of sales taxes but this would taper off. Despite losses in tax revenues, the couples would earn more so the income tax might actually break even. I have no idea what the point was.
So far the pro-gay or as Ted Olson would say, the pro-American values side have all the arguments and have made a strong case about gays being discriminated against. But given the resistance and inertia we see in making any reforms in the United States, I think this case has a long way to go before it's successful. The ugliness is right there. The anti-gay lawyers tried to introduce "studies" from about 25 years ago about gay males being promiscuous and living a libertine lifestyle. Although Tiger Woods is not the model of monogamy. But the creepiest undercurrent and it runs throughout the whole anti-gay marriage efforts is that homosexual males are basically child molesters and that they prey on children. All the nonsense about protecting children,etc. is rooted in this myth, which we remember from the first anti-gay campaigns led by Anita Bryant. This is burned into the Religious Right's forehead and is raised in every state campaign against gay marriage. Naturally, this runs against every study of gay couples as parents of adopted children.
Asked what straights have against gay males, Dan Savage answered, "Anal sex." There is alot of truth to this as we hear daily the rantings of right-wing radio talkshow hosts who seemed fixated on anuses, about bending over and accepting this politial policy or not. Focus on ("Your") Family is a great practitioner of anal sexual politics.
They also oppose the recent transgender appointee by Obama. This now-woman has three PhDs and spent 30 years with Ratheon, the Defense contractor, and is frankly over-qualified for her post at the Commerce Department, but Focus on the Family believes she should not have been selected because she mutilated herself in violation of God's commandments.
Luckily, the young think these debates are nonsense. If two people love one another, why shouldn't they be allowed to marry? Simple, huh. Maybe my Lesbian teamster niece will one day marry her partner? Stranger things have happened? They let Britney Spears get married?
But, three cheers for Ted Olson, who actually believes in the Constitution.
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