It took a gay Republican judge with libertarian leanings to issue from the bench, in a US District courthouse in San Francisco, one of the warmest testimonials to the married state since Erasmus. Last Wednesday Vaughan R. Walker, struck down California’s ban on gay marriage, prompting ecstatic rejoicing among a mostly gay crowd outside the courthouse. His ruling was the first in the country to strike down a marriage ban on federal constitutional grounds.
Walker ruled that a California referendum known as Proposition 8, mostly paid for by the Mormons, passed in 2008 and declaring marriage in the state was legal only when transacted between men and women, violates the Equal Protection Clause of the US Constitution because it discriminates against gay men and lesbians by denying them a right to marry the person of their choice, whereas heterosexual men and women may do so freely.
A final judicial verdict is years away, because appeals will now wend their way slowly through the system until they reach the US Supreme Court, six of whose nine current members are Catholics.
Back in 2004 18,000 same-sex couples were married in San Francisco in the brief period before SF mayor Gavin Newsom’s okay to license same-sex marriages in his jurisdiction was overruled by the state of California. It’s unclear whether there’ll now be a huge boom in San Francisco’s gay tourist economy. Walker has yet to rule whether he’s fired such a starting pistol for renewed gay marriage or whether they’ll have to wait final resolution of the appeals.
On the progressive side there’s a torrent of applause from liberal commentators at Walker’s 136-page vitriolic assault on traditional Christian family values, as represented by the Defense of Marriage Act, the California law passed by the voters in 2000 which started the whole ball rolling by reserving the married state to men and women — one of each.
The Tea Party crowd will be similarly heartened because the ruling buttresses their basic charge that America has been taken over by communist sons and daughters of Sodom.
The posture of politicians has often been circumspect, because Americans are pretty much evenly divided on the matter. Barack Obama has hopped backward and forward over the fence, letting it be known he “doesn’t personally support gay marriage,” but thinks Prop 8 was wrong and that the Defense of Marriage Act should be repealed. He’s for civil unions. In the race to succeed Arnold Schwarzenegger, the Republican, former ebay ceo Meg Whitman, says her religious beliefs — Presbyterian — compel her to oppose same sex marriage, though she’s all for civil unions. The Democratic candidate, Jerry Brown, twittered his support for Judge Walker.
Legal experts say Walker wrote a crafty decision supposedly establishing a vigorous factual support base supportive of gay marriage. In fact his animus against the Prop 8 crowd fairly steams off the page. Most of their arguments, Walker writes, “are nothing more than a fear or unarticulated dislike of same-sex couples. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal.”
Walker marshals the testimony mustered by the plaintiffs, those challenging Prop 8, into a veritable thesaurus of the miracles wrought by the marriage ceremony. At the mere overture of “Wilt thou take…” it seems that anxieties about self-worth, the burdens of low self esteem, the shadows of social ostracism dissipate in the warm glow of the marriage contract.
By contrast Judge Walker has nothing but contempt for the crudities of Prop 8’s prime witness, David Blankenhorn, who testified that marriage is “a socially-approved sexual relationship between a man and a woman” with a primary purpose to “regulate filiation.” The state, so Walker coldly characterized Blankenhorn’s views, “has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. Entrenchment of this norm increases the probability that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-sex sexual activity.”
Blankenhorn, the judge went on with the suspicion of a sneer, “testified that others hold to an alternative and, to Blankenhorn, conflicting definition of marriage: ‘a private adult commitment’ that focuses on ‘the tender feelings that the spouses have for one another’.”
Judge Walker then dismissed Blankenhorn’s testimony as worthless, remarking that the writings of this former Harvard man were not peer-reviewed!
Tender feelings notwithstanding, financial factors were often invoked in the plaintiffs’ testimony. Jeff Zarrillo and Paul Katami, a male gay couple, said they challenged Prop 8 because marriage has a “special meaning” that would alter their relationships with family and others. Zarrillo described daily struggles that arise because he is unable to marry Katami or refer to Katami as his husband. ‘My partner and I want to open a joint bank account,’ and we’re hearing, ‘Is it a business account? A partnership?’
Other witnesses cited favorably by the judge testified San Francisco “lost and continues to lose money” because Proposition 8 slashed the number of weddings performed in San Francisco and “decreases the number of married couples in San Francisco, who tend to be wealthier than single people because of their ability to specialize their labor, pool resources and access state and employer-provided benefits.”
“What we’re really talking about in the nonquantifiable impacts,” declared one pro-gay marriage witness, “are the long-term advantages of marriage as an institution, and the long-term costs of discrimination as a way that weakens people’s productivity and integration into the labor force.”
Same-sex marriage was hailed in Judge Walker’s courtroom as a social stabilizer, an essentially conservative force. It seems, there are more than than 107,000 same-sex couples living in California and in Judge Walker’s approving resume of testimony, “are similar to married couples. According to Census 2000, they live throughout the state, are racially and ethnically diverse, have partners who depend upon one another financially, and actively participate in California’s economy. Census data also show that 18% of same-sex couples in California are raising children.” Mind you, California has 37 million people in it, so 200,000 or so people in same-sex stable relations is a pretty small drop in the turkey baster.
In fact the drive for gay marriage is against the trend of the times, which is the single state, or people increasingly united — depending on the state they live in — by some form of civil union for the purpose of benefits, pensions, healthcare, wills, inheritances and so forth. Across America, on the last Census, there were 100 million unmarried employees, consumers, taxpayers, and voters who headed up a majority of households in 22 states, more than 380 cities.
Gays are crowding to board a sinking ship. Married couples with kids, who filled about 90% of residences a century ago, now total about 20%. Nearly 30% of homes are inhabited by someone who lives alone — no doubt awaiting foreclosure. The 2010 Census should show further dramatic changes.
If he’s for civil union, Barack Obama should give marriage, straight or gay, the coup de grace by pressing for a revision of federal laws to allow those in civil unions — straight and gay — to inherit their due portion of Social Security benefits of their deceased partners. That really would be a gamechanger.
I’m for anything that upsets the applecart, but why rejoice when state and church extend their grip, which is what marriage is all about. Assimilation is not liberation, and the invocation of “equality” as the great attainment of these gay marriages should be challenged.
As that excellent San Francisco lesbian paper, Ultra Violet, once put it,
“Marriage isn’t a civil right. It’s a civil wrong. We always thought that one of the good things about being a lesbian, or gay man, is that you don't have to get married. There is a basic conflict here, between those who see the gay movement as a way to gain acceptance in straight society, and lesbians and gay men who are fighting to create a society in our own image. A decent and humane society where we can be free. The origins of the LGBTQ movement are revolutionary. The rebellions at Stonewall and San Francisco City Hall were led by drag queens and butches who rejected heterosexual roles and restrictions… According to a 2004 General Accounting Office report, there are 1,138 federal rights and responsibilities that are automatically accorded to married people. Why should we fight for 1,138 rights for some people, instead of all rights for all people?
“The right wingers say marriage is a sacred religious institution. We agree. The state has no business getting involved in religious institutions, from sanctioning personal unions to legislating what schoolgirls should wear on their heads.”
Mind you, as a friend of mine remarks, “Practically in this poisonous capitalist climate where marriage is being promoted as a principle of female and child submission, the desire for marriage by gays is nothing but a security measure to obtain equal right in property and inheritance rights. Since we all live and perform within this bondage why deny them the rights to profit by this system too? To be holier than thou, expecting gays to be above this kind of domination is the worst sort of oppression.”
Final irony. The Tea Party howls that communist sodomites are destroying America. Judge Walker, one of two openly gay federal judges in America, was given his first appointment to the bench by Ronald Reagan, advanced by George Bush Sr and, as a libertarian, avers that selection of lawyers judging financial and drug cases should be governed by public auction. He’s no Commie. Anyway, Commies were often notable for their enormously long marriages.
In the old days I was always being asked along to some spry Red couple’s golden or diamond anniversary, the premises invariably wreathed in cigarette smoke. There are some no doubt still out there, heading for the granite anniversary, which is the 90th — which surely must take the physical form of the tombstone at their heads, cigarettes extinguished at last. ¥¥
The Mothers’ Rebellion: Defending the 700,000 Most Despised People in America
Our new newsletter is hitting the mailbox, and the pdf-carrying ether, this weekend. Meet the women trying to reform America’s insane sex offender laws. JoAnn Wypijewski describes their struggle. 80,000 dead, 8,000 disappeared: Peter Lee reports on the savage struggles in Kashmir. “Food security”… “sustainable agriculture”…“slow food”… “food sovereignty.” R.G. Davis separates the real from the phony in the world of organic food. ¥¥
(Alexander Cockburn can be reached at email@example.com.)