Perry v. Schwarzenegger : A Note

Yesterday morning, in a federal courtroom in San Francisco, began the trial of the case Perry v. Schwarzenegger, widely known as the "gay-marriage trial". This is the lawsuit brought against the state of California, challenging the constitutionality of proposition 8, the sate constitutional amendment that outlawed same-gender marriages in that state when they were already legal.*

Almost needless to say, this is an exceedingly important case, at least for me and my fellow conspirators of the homosexual menace. For us it's the chance for justice, equality, and civil right to triumph over irrational fear, bigotry, and oppression. The other side, apparently, believes it's their chance to demonstrate that their god really, really does hate homosexuals.

I don't plan to "report" on the progress of the trial, nor do I plan regular commentary as such. On the other hand, it's a significant interval in the arc of American civil rights and it will likely seep into whatever I'm thinking about over the next few weeks–or longer, if Isaac and I have to start making wedding plans sooner than we expected. I don't like making predictions about matters like this — it violates my physicist's fondness for verifiable statements — but I have difficulty seeing how any rational adjudicators can find for the defendants. However, given my reference to "rational adjudicators", I can hear you thinking that the Supreme Court is likely part of the suit's future.

In my earliest days online (usenet, c. 1992) it was a very popular activity in certain circles to "debate homosexuality". It always seemed a pointless activity to me, like "debating rocks" or "debating clouds" — what was there to "debate"? — but some loved the full-contact sport. (College students and those of sophomoric bent always seem drawn to pointless "debates".)

Some seemed to feel that they were honing their "arguments" but "honing" for what purpose wasn't clear to me either. Debates in the streets, I guess.

At that time the "procreative argument" that was meant to demonstrate that same-sex relationships were not "natural" was very popular and thought to be unassailable by those who used it.

It always started and ended in the same way: same-sex relationships were not natural because two men or two women couldn't have children, and that was what their male/female parts were "meant" for. But, one objected, what about mixed-sex couples who either couldn't or chose not to have children in their relationship? That objection was always brushed aside with something that approximated this idea: mixed-sex couples, in some Platonic-essence subjunctive world of male-types and female-types, could in essence procreate even if a particular instantiation was unable or unwilling to do so, so it's still "natural".

I kid you not. This "debating point" was taken very seriously by some, regardless of how obviously, ridiculously specious it was. Perhaps I should describe it as prima facie specious to make it sound more court-roomy, since this "argument" is still with us and has already turned up in the cloud of discussion surrounding Perry v. Schwarzenegger,

Fortunately, and rightly, the "argument" is sounding even sillier (if that's possible) than it did 15 years ago, and I have to say I'm happy enough to see that it will finally show up on the record in a courtroom where it can be laughed out of existence, as it should be.

The anti-equality forces that promulgated Proposition 8 were very vocal about their opposition to "the homosexual lifestyle", usually invoking children somewhere in their propaganda–a time-honored tradition with reviled social groups. Oddly, when the time comes to put their self-righteousness on the record in courtroom transcripts, they scatter like cockroaches in a kitchen when the lights are suddenly turned on. One of the defendants, who begged earlier last year to be made part of the case, is now begging to be left out. The governor and attorney general of California have both refused to defend the case in any way, perhaps realizing how quickly their names in the history books can become blackened with tarnish.

Before the trial began, Judge Walker planned to allow the proceedings to be recorded on camera, and for said recordings to be posted on YouTube. Not televised, but the next best thing. Oddly, the anti-equality defendants raced to the US Supreme Court to get the decision stayed. As I write the temporary ban is in place until at least tomorrow evening.

Why would the anti-equality people, who feel so self-righteous about their "moral" position on the matter, shun the light of national scrutiny? They claim a fear of violent retribution — remember when homosexuals were "pansy" weaklings that one could tread all over with impunity? — but we all know better, don't we? Recall the cockroaches in the kitchen. When on the record and under oath, their testimony is likely to whither faster than one could exclaim "Jesus Christ!" It could be embarrassing at least; at unlikely best it could silence their empty claims for years to come the way Kitzmiller v. Dover quieted the intelligent-design creationists, at least for a bit.

How in the world has it come to pass that we lovers of "the love that dare not speak it's name" have now moved out into the full sunlight demanding truth, honesty, and recognition when, a mere five decades ago, collective and individual shame was the acceptable strategy for surviving in a time when one's irrepressible love was both illegal and classified as a mental illness?

The homophobes really have no one to blame but themselves for this turn of events. Most gay and lesbian people had worked out schemes for living quiet, if not always satisfying and rewarding, lives. However, the "don't shove it down out throats" crowd just wouldn't leave us alone. Police made raids, then made arrests, then loudly published names just to ruin the lives of homosexuals. Shock treatments were touted as "humane" cures. Homosexuals were hounded and persecuted by McCarthyism as a far more tangible target than communists.

We weren't shoving it down anyone's throat but our persecutors amazingly kept opening their mouths and swallowing it, but blaming us for their discomfort while they enjoyed having social scapegoats that they thought were easy to blame and would never fight back.

Well, it got tiresome and finally went too far. Every year some of us celebrate the turning of the tide when homosexuals said enough is enough. We want to be left alone and you just won't leave us alone, so here we are to claim our rights as full citizens. Every year "gay pride" events around the country mark the anniversary of the Stonewall Riots that started on 27 June 1969, which is why such events typically happen in late June.

I think the dynamics of homophobia, both individual and societal, are pretty well known by now. Whence comes the idea that homosexuality is "shameful" I don't know–it could keep lots of graduate students busy for a long time writing theses about it. But, given the strength of the shame, we have seen for years the intense reaction it creates in some people who will go far beyond any rational response to their dislike of homosexuality with violence towards gay people and whatever legal forms of persecution they can contrive. Shakespeare gave us the truth from Gertrude's mouth: "the lady doth protest too much"; today we can easily recognize that person bearing the burden of shame trying to contrive ways to make him stop, to remove temptation by making succumbing to temptation too awful to contemplate.

But denying one's nature to that extent is a grave mistake and now the truth is out of the bag, that train has left the station, and the horse has escaped the barn. Pride has been the antidote to the venom of self-hatred and societal disapprobation.

And so here we stand at the edge of liberty and the beginning of equality for another group of people–my group of people. Whether it will happen through this lawsuit I can't say, but it's happening and this moment marks a big advance either way.

I was thinking today about the pitiful stance of some religious groups towards marriage equality for gays and lesbians, those who feel it necessary to proclaim that gay marriage somehow detracts from "traditional marriage". It's being revealed that the idea is as empty as it seemed, and it set the tone for the beginning of this lawsuit. (see "He Doesn't Know").

Think about it for a moment. Suppose, say, that the Pope had chosen to proclaim that "expanding marriage to more people, to loving gay and lesbian couples, can only strengthen traditional marriage by opening participation to all loving couples who wish to proclaim their enduring relationship".

I can't think of any way to make it clearer that "arguments" invoking "traditional marriage" are empty and arbitrary. And now equality foes have really dug their own grave by inflating "marriage" to an institution of such vital importance, so central to civilization as we know it, that gays and lesbians would be foolish idiots not to want it! Ah well, who am I to complain if they can't win for losing–or vice versa.

I appreciate the attention and support of my friends–and our friends–on this matter. We couldn't have done it by ourselves.
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* If you'd like to read some comprehensive background on the trial, you might try:

Posted on January 12, 2010 at 19.10 by jns · Permalink
In: All, Current Events, Faaabulosity, Reflections

3 Responses

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  1. Written by S.W. Anderson
    on Tuesday, 12 January 2010 at 23.33
    Permalink

    Liberal though I am, I'm not sure the state has any legitimate interest or say in whether the institution of marriage, civil unions or whatever, produce more or fewer births.

    I like your cockroaches analogy because the unwillingness of Proposition 8 defenders to make their arguments in public view speaks volumes about the worthiness of those arguments.

    I know you're not a TV viewer, but wish you would've seen Rachel Maddow's program this evening. She had the remarkable legal team of Olson and Boies on, for what turned out to be an inspiring, or at least extremely encouraging, interview. I think you would've cheered. Olson is a lion of the Federalist Society, the elite corps of right-wing lawyers. Boies is a liberal and civil libertarian. The two respect each other and have found common ground on this issue. Olson's statement about marriage being a fundamental human right; about the issue not being liberal vs. conservative; saying the right to marry is an American value, was spectacularly reassuring.

    I'm led to believe if these two can't put Prop 8 away, there's not much hope via the courts until a whole lot of Reagan-, Bush 41- and Bush 43-appointed judges are no longer on the bench.

  2. Written by jns
    on Tuesday, 12 January 2010 at 23.51
    Permalink

    I have to agree, SW, that if anybody can successfully argue this case, Olson and Boies seem the most likely to do it, and to do it in a direct, no-nonsense, non-euphemistic way. Olson, at the end of his Newsweek piece, even managed to quote Justice Scalia in a way that supports his case, a remarkable quotation I'll try to remember to share tomorrow.

    BTW, although I don't watch television, I frequently see links to Maddow's show and I often watch segments, so I expect I'll be looking in on this one tomorrow.

  3. Written by S.W. Anderson
    on Wednesday, 13 January 2010 at 16.26
    Permalink

    Jeff, I should've , mentioned how worthwhile the rest of Maddow's show was last night. Start to finish, it was outstanding.

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