Too optimistically whiggish?
Federal District Court Judge Vaughan R. Walker made the right decision in the California marriage case yesterday–interestingly a decision (like Dred Scott) based on history more than on the law. Historians Nancy Cott and George Chauncey appear to have been extremely important in his decision, which you can read here. (Check out the citation of Antonin Scalia’s opinion in the 2003 the Lawrence v. Texas case to explain the judge’s reasoning, p. 63!)
The big lesson in this case appears to be–have a case and credible witnesses to back it up. Walker’s decision makes a great deal of the credentials and credibility of the plaintiff’s witnesses (those testifying against discrimination in marriage law) versus the absence of credentials or credibility in the two–two!–witnesses who appeared for the defense of marriage discrimination. (If you followed the case last winter, you’ll recall that there was a great deal of folderol about the pro-discrimination team fearing for their personal safety if they actually testified about their opinions. Please. They were defending a law the majority of California’s voters approved of just 14 months earlier, a law that supposedly reflected the will of the people. I tell ya, in this country we used to have civil rights foes who would go to the mat to preserve discrimination! These folks are just wimps.)
What possible strategy could the pro-discrimination team have had in mind in basically throwing their case? Did they just want to rush their appeal on up to the Roberts court? Will the Roberts court as constituted as of the beginning of October 2010 rule in favor of marriage discrimination? I suppose that will depend on the allegedly awesome politicking of Elena Kagan and whether or not she and others inclined to support marriage equality can persuade Anthony Kennedy to see the light of history. Even so–I’ve always seen John Roberts as more of a corporate hack, not of the curious “moral” ilk of Scalia and Clarence Thomas (and probably Samuel Alito). He seems to be a proud man, and one who can read the tea leaves of history. Would he really vote to support marriage discrimination?
What do you all think?
Historiann 
I think that, at some point, a number of the “facts” on which this opinion depends – what sexual orientation is, what it is to be gay or straight – will be erased over time.
For example:
“Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes. An individual’s sexual orientation can be expressed through self-identification, behavior or attraction. The vast majority of people are consistent in self-identification, behavior and attraction throughout their
adult lives.”
“Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.”
But that doesn’t mean it’s bad for the opinion now. I think a fact intensive opinion, which is what we seem to have, makes it more difficult to overturn on appeal.
As to legal strategies, there’s no “tanking” now to get it to the SCt faster. That’s because the record for the appeal, meaning the documents, facts, testimony etc. before the SCt, is determined by what’s presented in the trial court. If they didn’t submit it in the trial court, they can’t submit it to the SCt. Also, it wouldn’t have been appreciably slower or faster in the trial court if they’d decided to present a more fact intensive case.
My belief is that they think they don’t need to worry about the facts because they believe they can win on the law. That is, the state need only show a rational basis for discriminating against gays and lesbians, and that’s a pretty low bar.
For myself, I am very leery of anything that depends upon “identities” or “behaviors” of persons to extend legal protections, as this opinion seems to. I am concerned mostly because of the way “gender identities” seems to be taking over the discussion of sex discrimination, a development which will only be to the detriment of women. In comparison to some feminist theory of the 70s, 80s, and 90s on gender, “gender identity” is regressive and conservative. So, too, with “sexual orientation” identities, which is what (at first blush) seems to have been presented to the trial court.
Though, it’s 138 pages of trial court opinion, so I haven’t read it all yet. But I really do think there’s a regressive and conservative trend in sex equality and G/L equality law that is the result of the “gay marriage”/”gay family” movement and the transgender movement. These movements, and the social and legal theories on which they depend, are fundamentally conservative and regressive in terms of gender. So, I’d say it’s a qualified victory that probably presages less protection for women in the long run.
As for Roberts, I’ve seen nothing that makes me think he’s a social liberal or middle of the roader.
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Thanks, Emma. I agree with you about the regressive nature of these public policy discussions of gender and sexual identity. When marriage rights became the organizing principle for a lot of queer politics, there are a number of essentially conservative arguments that have been made in defining queer relationships. I’m in favor of the state treating all adults equally regardless of their marital status or sex lives. No special rights for the married–whether gay or straight!
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Agree with Emma that the shift from feminism/women to gender has been bad for women and conservative at its core. Same with the related pomo turn in academic feminism.
As for the Supreme Court, I think they’ll try to dodge the decision. This lineup of judges won’t feel comfortable with any clear statement on gay civil rights. Except Scalia and Thomas, that is, but their view doesn’t enlist a majority. So I’d predict some kind of declared technicality or other stall.
Maybe this is just my lawyer’s vanity speaking here … and I don’t think law is an ideal-type science that yields answers … but it seems odd to say that a judicial decision is “based on history more than on the law,” as if history points to some kind of forensic truth. Especially when resolution must be (1) forward looking (2) material/tangible (federal courts have no jurisdiction to hear cases in which the litigants lack a stake) and (3) binary & zero-sum. Are you just describing the rationale Walker used?
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Yes, just describing Walker’s decision as I read it, not suggesting it’s a good or winning strategy.
But if you talk to historians who know something about Western marriage in the past 2000 years, they’ll all be able to describe in great detail the many ways in which the definition of marriage has changed over time to serve different religious and political agendas. The idea that the “traditional marriage” advocates advance–that marriage is and always has been a timeless, unchanging institution–is just idiotic hokum. Medievalists can point to married priests and even same-sex domestic arrangements, not to mention marriages without consent. American historians can give whole seminars on the political nature of marriage law in colonial Anglo-America and the U.S.
To me, the strongest analogies for marriage equality now are the laws that forbade interracial marriages that were legal until the Loving decision in 1967. Denying legal marriage to enslaved people, and then regulating marriage along racial lines, were fundamental strategies of the state in preserving its racism. Marriage–and who’s allowed to be in it and who’s forbidden–has always been an intensely political and (as Nancy Cott argued) a *civil* matter in the U.S. Religion ain’t got nothing to do with how the state defines and sanctions marriage.
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I agree with you about the regressive nature of these public policy discussions of gender and sexual identity.
What I’m saying is: the idea of gender and sexual “identities” is a fundmentally conservative idea that posits internal, natural, and essential orientations toward certain sexual activities and gendered behaviors.
That is: trans theory posits that people act masculine or feminine, e.g. wear certain clothes, use particular mannerisms, because of an unalterable internal identity.
Homosexuality is defined as an internal and consistent-over-a-lifetime, i.e. essentially unchangeable and unchosen, “identity” that compels you to act in certain ways, i.e. choose people of the same sex as sexual partners.
It is the same idea of biological/natural predisposition on which most discrimination against women putatively rests. Saying that women are biologically incapable of math and denying them educational/employment opportunities because of it is pretty much the same as 1) providing SRS to males because of their internal, unalterable “gender identity” as women and 2) providing equal rights protection to gays and lesbians because we have no choice about who we “love”, i.e. have sex with.
It’s biological determinism from top to bottom, which results in lots of gay people saying “You have to protect me! I can’t help it!” It doesn’t do anybody any favors.
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It appears that from my perspective on the non plant Pluto,a court that declares companies as equal with humans wont have much difficulty with thumbing down gay civil rights. These guys seem to running against the clock to return the country to pre-FDR days (Scalia and Thomas pre-Licoln days). There seem to be a microscopic daylight between the four musketeers of the right. Kennedy, typically a fifth wheel in the right’s rotten apple cart falls asleep once in 15 decisions and joins the more liberal wing. (There are no liberals on the court since Souter and White left.)
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I wrote a post about the two key arguments in the case late yesterday in which I considered the meaning of organizing around marriage for queer community/ies. I think combined with some of what Emaa is saying about definitions and their impact, these points speak to larger issues we are grappling with that go beyond the decision made. I also think we need to remember that this decision is already set to be challenged by the other side so that celebration needs to be put in a context of a larger, longer struggle
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I’m a lazy fucken shit, so I’m gonna copy/paste the comments on this topic I left elsewhere:
The fucken government should not be involved in the marriage business at all. But if they are gonna entangle themselves in this shit, then they gotta obey the fucken constitution.
And just to address another thing that is popping up all over the fucken comment threads on this ruling, it doesn’t fucken matter one iota from a legal standpoint whether homosexuality is a “choice” or not. Regardless of whether it’s “biological” or a “choice”, it’s not a fucken rational basis for distinguishing classes of citizens with different levels of access to governmentally provided/enforced rights.
Woo!! Dancy, dancy!
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John Roberts (in)famously read ‘the tea leaves’ of America’s racial history and concluded that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” I can not imagine that his thinking in regard to gender, sexuality, and marriage features any greater nuance, insight, or bent towards justice.
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Good point, ryab. Guess it’s a good thing that Walker essentially wrote his opinion in Perry v. Schwartzenegger for an audience of one, Associate Justice Kennedy.
Thanks for the reminder on Robert’s stupidity. I guess he really doesn’t give a crap how he’ll be regarded in history. Oh well–neither did Justice Taney, apparently.
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I don’t think these fuckbags don’t give a crap. I think they are actually deluded, and think that serving the anti-American factions they currently serve will ensure them a positive place in history.
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