Friday, May 16, 2008

Marriage, Equal Protection, and the Limits of "Tolerance"


The purpose of this post is mostly to do what my students did yesterday in class: to give a loud cheer for the California Supreme Court's ruling that same-sex unions can't be treated as legally second class. Yay!!

I was just about as heartened by the students' reaction as by the ruling itself. Through discussions with them, I know that a good 80% of them don't have a problem with gay marriage. When opposition drops that low - in Ohio, for goodness sake, no bastion of liberalism - it's a hopeful sign for the future. They will outlive the older generations who still think the sun ought to revolve around the earth.

The rest of my students still have issues with homosexuality, ranging between aesthetic disgust and religious qualms - but they're aware enough of their minority status that they're slow to voice their feelings, and I notice a change in this even over the past five years. That 10 to 20% probably felt alienated by the cheering. They'll have to get used to it. Homophobia is moribund. It's already a social embarrassment in their generation, much like overt racism is in mine. And they know it.

But if you push hard, you still discover limits to "tolerance" even in the ostensibly pro-inclusion supermajority. For instance, some students still say that they don't understand why gay people (and here they really mean gay men) "have to flaunt it." As if a once-a-year gay pride event with men in nothing but lederhosen weren't totally offset by the heterosexual spectacle on the streets and in the bars of this college town every weekend - and remember, the weekend starts on Thursday night, and on Wednesday in fine weather. The women's clothes barely keep them from getting arrested - and the displays of heterosexuality are, well, blatant! Shocking! You see boys and girls together and golly, they flaunt it!

Another gripe a few of my straight students expressed was "why do 'they' have to be so angry at heterosexuals - aren't they doing the same thing as the anti-gay people?" Well, sure, it's exactly the same - if the gay haters feel they can't hold hands in public or be open about their sexuality at work or adopt children or walk down the street without fear. Even otherwise well-meaning young people may still have a hard time seeing how oppression creates asymmetries that make anger mean something totally different among oppressed people.

Despite the limits of "tolerance," I still think the California ruling shows how far this sea change has come and how irresistible it will be in the future. It's of course wonderful news for the couples who will now have a real choice about how to organize their lives. It's also a delicious irony in that six of the seven judges on the court are Republican appointees. More power to them for embracing the law and fairness rather than caving to political pressure.

While I'm no legal expert, two things popped out at me from Glenn Greenwald's analysis that portend well for the future. First, the court specifically left open the possibility that California could comply with its state constitution by essentially establishing civil unions for all couples, gay and straight, and leaving "marriage" to the churches. This is a solution that I've favored for years, having seen how successful it's been in European countries. First, the distinction draws a clear, bright line between church and state, which benefits both in the end. Second, with that distinction already in place, European governments have had a fairly easy time implementing same-sex unions. Of course, they don't have organized wingnut opposition - groups like the Concerned Women of America strike them as almost a joke - though some of them, like Spain, did face the Catholic Church. But keeping church marriage distinct allows religions to have their own sphere of influence without dictating public policy.

Second, while the court emphasized that its ruling was based on the state constitution and not on the federal one, its rationale - equal protection under the law - illumniates the path that I think this country will ultimately have to take, whether we keep marriage under state control or redefine it as civil unions for all. The Fourteenth Amendment can and should be interpreted to protect everyone, no matter who they love. Obviously, our current SCOTUS tilts too far right to even consider this; it's no longer the same crew who gave us Lawrence v. Texas. But "equal protection" ought to mean exactly that, and this ought to be glaringly obvious to all of us, legal experts or not.

Dr. Rüppel clematis from my garden.

17 comments:

Lynn said...

Well said! Equal Protection...can you imagine???

sinjinvonhoogstraaten said...

If your 80% estimation is correct, that's a sad statement about the direction of America. Biblical morality is vanishing.

It's time to pray that in November voters will have their say in defining marriage as between a man and a woman, the natural way, the way God intended.

People who choose to live a gay lifestyle can do whatever they'd like behind their own doors. Sin which I cannot see or I do not know about, I cannot condemn.

But to allow that behavior to be openly accepted in America is not what is right for this land. Biblical morality is what is needed, not ultra-liberal openly gay marriages.

Sungold said...

Lynn, it's actually the U.S. Constitution that says it, not I! :-) So let's hope.

Sinjin, you can cite Leviticus, but frankly, we eat shellfish these days, too; no Christian I know follows Leviticus to the letter. You can cite Paul in Romans, but he was pretty lukewarm on marriage, *period,* and viewed celibacy as a higher state. You can appeal to "Biblical morality" but let's remember that the Bible condones slavery.

You can declare same-sex love a choice, but most gay people feel it's as hard-wired in them as my heterosexual desires are in me.

Also, last I heard, secular laws ruled this country; theocracy tends to result in countries like Afghanistan under the Taliban or Spain during the Inquisition. I'm glad we're governed by a constitution, instead.

I'm not going to engage these sorts of arguments further; they're too weak to deserve the time and energy. What interests me is what will happen next in California and throughout this country.

Mollyfa said...

Sungold, I love you. Not in a gay way, not that there is anything wrong with that :) I cannot for the life of me see why people have a problem with gay marriage. How does it affect anyone who is straight? How can two people saying that they respect marriage, and therefore want to be a part of it, weaken the institute?

As for the argument that it's okay if they do their "sin" behind closed doors then it's fine, that's just ridiculous. Does that mean if you kill somebody behind closed doors, then I should be fine with it? The fact of the matter is, it is not a sin. God obviously made them the way they are, just as he made me the way I am.

And civil unions just don't work either, because we all know that separate is not equal. Legalizing civil unions is a step in the right direction, but let's face it, it's not much different than having black and white drinking fountains.

I realize that this argument has been barfed out without much wit or organization, but the last comment got me a little riled.

Yea California!

Mollyfa said...

I just was re reading, and you are right, that the only way that civil unions work, is if they totally seperate church union and civil unions, so that it is civil unions for all.

Sungold said...

Molly, you could love me any which way, and I'd still just take it as compliment. :-) That's what's nice (and also pretty privileged, for us straight people!) about knowing one's own predilections.

Your point about "separate and unequal" with regard to blacks and whites in the American South is really important. We tried that. It *really* didn't work.

And yeah, I have yet to figure out how my gay and lesbian friends' relationship - committed and not - have *any* effect on my marriage. I can think of a hundred influences that have helped or hindered the health of my marriage. Same-sex unions don't come anywhere on that list.

sinjinvonhoogstraaten said...

In God We Trust.

Leviticus has a lot of stuff in two categories: ritual and moral. With Jesus, laws of ritual no longer mattered. They became historical record while laws of morality, they carried over and they pertain to Christianity today.

What needs to happen with California is the people need to decide, not judges.

If the people vote NO then so be it: no gay marriage.

If 50.00001% vote yes, then Christians need to do a lot of teaching so that more people know that homosexuality is a sin.

In God We Trust. More of this country needs to be moving TOWARDS Godly living, not away from it.

Sungold said...

Sinjin, I appreciate that you see this as a situation where teaching needs to occur. I think we agree on that point, though from *very* different (OK, opposite) perspectives.

If you believe that the New Testament represents a new covenant, then it only makes sense that Jesus' message of love trumps the harsh purity rules of the Old Testament. And let's remember, Jesus never once mentioned homosexuality. I just can't imagine Him leading the charge against the California ruling.

I'm pretty confident that the rising generation sees it similarly. Young people have been exposed to both punitive and the loving views toward homosexuals, and overwhelmingly they have chosen the message of love.

So, if you believe in teaching homosexuality is a sin, you have a lot of work to do to convince people that you're right. So far none of your arguments have been at all persuasive.

John Pine said...

The point is that the the number of gay men and gay women seems to be far higher now that it has ever been before. I think even Lesbos had a minute number of lesbians (in the modern sense) compared with what we have now: in those days it seems that it was more or less confined to Sappho and a few followers - if indeed Sappho was lesbian at all. In Heroides XV she did after all jump off a cliff because her toyboy Phaon (who'd been given a beautifying skin cream by Aphrodite!) wouldn't reciprocate.

So what is going on? I don't believe that gays are more prominent now merely because only now are they coming out of the closet. Our new genetic fatalism means we all desperately look for genetic programming (in other words we want to say being gay is hardwired).

The fact that some people are bisexual suggests there is an element of choice involved.

God bless Alan Turing without whom we would have lost the second world war and without whom I wouldn't have the computer I am writing on now. God bless Michael Coulson who wrote my Sanskrit primer. Both of these committed suicide because they were not accepted (of course we should have accepted and appreciated them: that is obvious). And God bless love which is good in any context.

But the rise in the number of gays is related to father deprivation (West - 1959 and 1967, O'Connor - 1964 and Henry B Biller of the University of Rhode Island 1976) a malaise which is having other much more serious effects - a malaise which is being condoned and even endorsed by the divorce courts.

Father deprivation makes the children unable to relate properly to the opposite sex: this results in a recycling of the difficulty in the next generation and a vortex of other problems.

Sungold said...

Hi John. If you have evidence for homosexuality being more prevalent among children of single mothers - particularly where the father is largely absent - please post a link here or write it up on your own blog and I will link to you. By "evidence" I mean a scientifically sound study, not anecdote. I'm not aware of any such studies, however.

As for gays being more numerous than ever before in history, here's what I think you're seeing. One, the penalties for being openly homosexual have decreased dramatically over the past two generations, so far more gay people live openly. (That doesn't mean the penalties are gone, by any means.) Second, the whole category of "the homosexual" is modern - less than 150 years old - whereas in earlier times, there were homosexual acts but not homosexual *persons.*

Kinsey put all of us on a spectrum ranging from heterosexual to homosexual. So for some people, yes, there may be an element of choice. For others, there's really not. If someone forbade me from being attracted to men, I'd probably be celibate. (I'm not saying this to prove my "straight" credentials, only to indicate how this is a two-way street: Those of us at either end of the Kinsey scale would have a terrible time trying to warm up to the opposite preference.)

And let's all take a minute to be grateful to Alan Turing. Thanks for mentioning his legacy, John. Wow, I wonder what he'd think about the Internet!?

John Pine said...

I think Henry Biller is pretty convincing - see especially pp 115, 116, 117, 127, and 128. It is not a study of single mums as such: it deals with father absence and relative father and mother effectiveness and yes, dominance.

When it comes to delinquency and crime, however, there is empirical evidence about single mums and excluded dads in Hathaway and Monachesi and in Bacon, Child and Barry. All of these I have as pdfs but I am not quite sure how to get them into the blog.

John Pine said...

The page numbers refer to Henry Biller's chapter in the 1976 edition of 'The Role of the Father in Child Development' ed. Michael Lamb - this excellent book offers different fruits in each of its several editions.

Sungold said...

Hi John. Let's leave crime aside; it's a totally different issue. If you want to write about this, I'd suggest you take it up on your own blog.

I tried to look up Biller through Google Books but can only access the 2004 edition of Lamb's volume, which does not include Biller's article. So here, too, if you want to explore this in more depth, you could write a post of your own on your blog where you include some of the evidence from Biller that you see as germane.

By the way, I'm not discouraging you from posting here, just recognizing that you have things you want to say that probably exceed the format of other people's comments sections. A major reason I started my own blog was that I realized that was happening to me, and so I decided to create my own soapbox. :-)

John Pine said...

Sorry to burst out of my remit! There are eleven copies of the book available on AbeBooks (which represents the global resurrection of out-of-print books. What a bananza!)

John Pine said...

bonanza

Sungold said...

Don't you just love being able to get *any* book - even lots of out of print ones?

John Pine said...

There are some real bonuses to be enjoyed in these times!