The Gay-Marriage controversy puts me in mind of the American experience with race relations. The constitutionality issue is on trial in San Francisco now, concerning whether the ceremonies initiated by Mayor Gavin Newsom are legal. The California Supreme Court has said they aren't under California statute, not constitutional, law. The City Attorney of San Francisco is maintaining that California law violates the U.S. Constitution. The California Attorney-General says it doesn't. A trip to the U.S. Supreme Court seems in the offing no matter which way the Hon. Richard Kramer rules. He was the judge in Foxglove, a case I had something to do with. His close friends include a gay couple raising a daughter, which he respects, as we all should. Do not expect him to be bigoted or homophobic, not in the least. He's way past that, if he was ever there, which I doubt.
San Francisco is way ahead of the rest of the country. We welcome the folks who expect to be uncomfortable back home. Good for us. We'll show you the way...
Incidentally, on a visit to SF in 1963, I visited Hastings Law School, where from the balcony overlooking McAllister Street, I witnessed a Civil Rights march and took a few slides that I have somewhere. I still remember it. Black people, neatly dressed, dignified, walking down the center of the street, carrying signs. First time I'd seen black people, or any people for that matter, marching together for a cause. Ahead of the rest of the country, perhaps, at least as I saw it, then. San Francisco.
In Athens, in 1989, on a trip, Tiananmen was occurring in Beijing, or Peking, as I'd learned the name before Mao changed it. I watched Athenians take to the streets, marching, for the Chinese fighting for democracy in Tiananmen. Of course! Athens, where democracy as we know it got started. Good for the Athenians!
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From 1619, the arrival of the first black slave aboard a Dutch ship in Chesapeake Bay until 1954, in Brown v. Board, blacks were not the legal equals of whites. The dominant cultural attitude was, according to a black expression, that "White is right, Black step back."
White supremacy, this was called. It was the dominant cultural paradigm for centuries.
It was hard for whites, who had grown up looking down on blacks, first as slaves, and then under Jim Crow, as decidedly second-class citizens, to treat inferiors as equals. In white eyes, this was the case, inferiors seeking to be treated as equals.
The message of inferiority was conveyed in every conceivable manner: Legalized slavery, enforced lack of reading and writing, inability to testify in court against a white, forbidden to own property, to marry, to keep intact a family, tied to a patch of ground, enforced subservience in language and gesture, preaching by pastors, preaching by government officials, and so on ad infinitum.
It must have been an unusual white who wasn't infected by the racism that so many grew up with. Mark Twain was an unusual white. See Huckleberry Finn.
It was a crime in Virginia for a black to marry a white up to 1967, when things changed. Loving v. Virginia.
Gays have been treated as second class citizens since the demise of the ancient Greeks. In 1986, in Bowers v. Hardwick, the Georgia sodomy laws against gays were held constitutional. Virtually all messages in the American culture militated against the legitimacy of gays and their relationships. Gays were sick jokes, ripe for being picked on. Gay-bashing, it's called.
Homosexuality was treated as a disease to be cured, even though some of those afflicted didn't wish to be cured. What kind of disease is it where the alleged sufferer doesn't wish to be cured? The psychologists and psychiatrists eventually abandoned the effort. They voted homosexuality off the illness list. I don't know what the vote was. Medicine was politics, not science. So much for medicine in the modern age. Another iatrogenic disease. Doctor caused, this time by definition.
Homosexuality was also treated as a bad life-style choice, as though people decided to whom to become attracted. "Oh, I think I'll try boys, this time."
"When did you decide to become a heterosexual?" someone asked the Rev. Jerry Falwell, the anti-gay preacher. He was stuck for a good answer.
The Supreme Court reversed Bowers, in Lawrence v. Texas, (2003). Suddenly gays were people, and equal people, at that.
Well, almost equal, anyway.
They couldn't marry.
Why are gays forbidden to marry?
Because gay-marriage poses some sort of a threat to straight marriage?
The greatest threat to straight marriage is another straight, not any gay.
If you want to protect straight marriage, make it a public offense for a married person to look at, talk with, or have anything to do with other straights. Force them to deal only with gays. That's how to protect straight marriage from other straights.
Nope, I think the problem with gay marriage is not that it's a threat to anything real. It is a threat to a deeply ingrained cultural belief, the way slavery, Jim Crow, and white supremacy were deeply ingrained in American culture for generations.
Gay marriage is a threat to the belief (of some straights) in straight supremacy, just as equal rights for blacks was a threat to the belief (of some whites) in white supremacy.
The belief is real enough, but the basis of it is a figment of the imagination. I'm not sure what a figment is, actually, but I don't think it's something very real. It's a false belief. It's the intellectual equivalent of being scared of your own shadow, which may be saying a lot, in this case.
Well, guess what.
Things change.
But first you have to think about it a bit.
To get past the way you were raised.
Which teaches us something about constitutional law and why, if it means anything, it must be controversial.
We grow up with certain assumptions, those unquestioning and unquestioned beliefs that this is the way things are. The world is the way that it is, and there's no sense fighting City Hall.
Constitutional Law in America, with our written constitution and the Supreme Court's magical power of judicial review, the power to set things right once and for all, is fighting City Hall in a very big way.
The fight always starts out as being laughably ridiculous in terms of the common assumptions of the dominant culture at the time.
Equal rights for blacks? You mean those slaves over there? You must be crazy! Don't make me laugh. 1860.
Equal rights for blacks? 1896. On trains? Don't make me laugh. You must be crazy. Separate railroad cars are required for blacks, just as separate schools. So said the Supreme Court in Plessy v. Ferguson, over the dissent of the first Justice Harlan, who said the Constitution is color blind.
There's something that'll make one laugh.
Legalized marriage between blacks and whites? Don't make me laugh. You must be crazy.
Rights for criminals? Don't make me laugh. You must be crazy.
This is what Constitutional Law is all about, and why it can be so difficult.
It's about taking a laughable, crazy idea, the protection of a despised minority category of almost non-persons, and turning it into law to protect them as human beings worthy of being treated with dignity. Dignity means respect. Respect for criminals? Don't make me laugh, that's crazy. And slaves? Even more-so.
Don't expect the Supreme Court to take the lead in going about this.
The Court doesn't act until the country is ready to act.
The justices read the tea leaves. Until the leaves form the right pattern, the justices think these new ideas for change are just as laughable and crazy as you do.
Until the attitude of the dominant group, the one that sets the cultural paradigm in the country, changes enough to be reflected in the hearts and minds of the people appointed to the Court, expect no change. When there is a consensus in the country that change in a particular direction has occurred sufficiently to recognize it legally, expect a 5:4 decision in favor. Later you may expect unanimity. Before there was Brown v. Board, (1954) there was Shelley v. Kraemer (1948) striking racially restrictive covenants in property deeds. Did that turn white neighborhoods black? Not in the wealthy neighborhoods. Yes in the poor white inner cities. Hence the rise of white suburbs. White flight. Today "inner city" is political code for black, as in 'black ghetto.'
What's the lesson?
When certain attitudes are deeply ingrained in the dominant culture, any challenge is viewed as laughable, crazy, and threatening.
It takes years, decades, generations, civil rights marches, agitation, propaganda, parades, and yes, violence to generate the necessary thought and discussion. I'm not advocating, I'm describing.
How do you see things? Very differently? How?
Okay, I was giving the straight, white viewpoints, above. Laughable, crazy, threatening.
What was the black viewpoint while all this heavy-duty racism was going on, legally, at gunpoint.
"Those crazy whites! What's the matter with them? Don't they realize that we're people just like them? They need to wake up. So blind, so narrow-minded." And I'll bet they hadn't read the Merchant of Venice, either.
Well, of course, it's crazy. The whole point about being crazy is that the crazy person doesn't think he's crazy. He thinks everyone else is crazy. Why do you think crazy people don't take their medicine? They're afraid of going crazy if they do. The way they are, to them, is sane. It's the rest of us who are nuts. There may be something to the notion.
At least that's what I think.
I'm not really sure, but that's my best guess, because I don't always take my meds, I suppose...
Thurgood Marshall had an expression, for when he'd go to court in some Southern town he was well advised not to be seen in after dark. He'd say he was down there helping to save the white man from himself. That must've been a pretty good joke at the time. Today it seems as though it wasn't funny at all, just the God's honest truth.
And truth to tell, there are whites who lived through and supported all of that white supremacy business for all their lives, who later expressed gratitude for having been freed at last. Thurgood Marshall freed more than the blacks. He freed the whites from their own self-enforced prejudices.
When's the last time you saw a Supreme Court justice, apart from Thurgood Marshall, who actually did something significant before being appointed to the Court?
Lyndon Baines Johnson, the president who appointed Thurgood Marshall to the high court, was asked to consider someone else, instead, a light skinned black. Someone less threatening, I understand was the theory, to whites, whites who held this attitude towards, or against, blacks.
LBJ, this Texan, in refusing, said something to the effect that "If Ah'm gonna appoint the first Nigra to the Supreme Court (He didn't say "Nigra." He didn't say "Negro," either), Ah'm gonna appoint someone everybody knows is black."
And so he did.
You don't cure a crazy person by telling him he's crazy.
In mental institutions they don't tell the fellow who thinks he's Napoleon that he's crazy. When they want him to clean his room and he refuses because, after all, he's Napoleon, the sane thing to tell Napoleon is that good generals keep their room clean.
You think I'm joking.
I'm not. There's a term for this.
It's called "Paradoxical Intervention."
Playing to the craziness.
Now tell me again why gays can't marry, I don't think I got your reason the first time you explained it.
You're not bigoted?
You're not a homophobe?
Great.
Explain it to me one more time, then, why. I'm trying to understand.
Oh, I'm a liberal, and that explains why I can't understand?
Liberal? I'm the most conservative guy you've ever seen!
I believe in preserving, conserving, and spreading around as much as possible all of the equality I can.
How does that make me liberal?
Maybe a tad less narrow-minded than I was before this debate began.
I did think it laughable, and crazy, and, I suppose, threatening to the foundations of society as I knew it, for gays to be recognized and treated as equal.
I had hardening of the categories.
Suddenly I don't feel that way any more.
Suddenly, once again, society doesn't seem to have thought this through, quite.
Suddenly one of us is nuts, again, me or society.
I'm willing to take my chances on me, this time.
I feel freer, already.
Let 'em marry.
And see what it's like...
An afterthought...there are always afterthoughts:
What it's all about, in the larger sense, is two things: Supremacy and Moral Purity.
Those are the bases on which our courts and juries make decisions. Those are often the 'unarticulated major premises' for legal decision-making. The unstated reasons that control the real reasons.
In matters involving race, white supremacy ruled.
Other 'supremacies' involve the individual vs. the government. Justices who seem to be what I call "government men" (or women) tend to decide more often than not in favor of the government. Government can do little, if any wrong, when it comes to the individual, to G-men (or women). The current CJ seems to be the leading example.
The current marijuana case, Raich v. Ashcroft is a drug case, not a states rights case. Oh, sure, Prof. Randy Barnett of the BULS has done a terrific job of trying to recast a dope case as this huge problem of individual liberty against a drug-Prohibition scheme, with states rights thrown in to boot, but my guess is that the Court will brush all that aside and decide the case on grounds of government supremacy, not individual. You can't go around giving individuals all these rights. This is no way to run a railroad. The G-man's point of view.
Besides, marijuana is tainted, as a drug, with moral impurity. Too many people enjoy marijuana. Anything that a lot of people enjoy, especially mind-bending things such as drugs, sex, and rock'n'roll, arrive on scene morally tainted from the git. Moral impurity rarely wins the day, and only against long odds.
Criminal defense lawyers know that the moral impurity of their client often kills their case in the eyes of the jury. It's what killed Scott Peterson, in addition to the evidence. All that stuff about having an affair while his wife was missing. No way Geragos was going to save him after that. Like a bad movie, moral impurity must be punished. In our most compelling stories, there are heroes, victims, and villains.
Police reports, the official start of most criminal cases, always start out with: Victim, and Suspect. The hero is the cop, of course. The suspect is the villain, your client. But sometimes your client is the victim. Re-casting your client from villain to victim takes some doing. But that's what makes a horse-race out of a jury trial.
Moral impurity.
Supremacy.
The big issues in Con-Law, and any law; who's got it, and who doesn't...
Can you think of any others?
Let me know if you do.