Dec 8, 2013
Prop. 8 and the Misery of the Law
Posted on Jun 4, 2009
By Scott Tucker
The historian Henry Steele Commager once wrote a fine introduction to an annotated edition of the United States Constitution (“The Meaning of the Constitution,” by Angela Roddey Holder and John Thomas Roddey Holder), and he noted, “If we have an aristocracy in America, it is, as de Tocqueville observed 150 years ago, ‘the aristocracy of the robe.’ At the very beginnings of our judicial history, American courts adopted the habit of elaborate written opinions, of seriatim opinions and, a practice all but unknown elsewhere, of dissenting opinions. These were, in effect, appeals from the present to the future, but courts were not invariably dependent on precedent. They could override earlier decisions in order to accommodate the Constitution to the necessities of the time—thus making sure it would be a living instrument.”
There you have, in brief, the more or less Darwinian argument for the evolution of constitutional law. The basic genetic elements of any body of law will have a certain stability over time, and may prove sturdy under the stresses of technological advances and cultural revolutions. To preserve the best elements of past radicalism, the law must have a conserving (and thus conservative) power. But even a strong constitutional system may suffer from hardening of the arteries after hundreds of years. If, for example, the anti-majoritarian provisions of constitutional law were read to provide the greatest privileges and protection to the rich on the grounds that the rich are evidently less numerous than the poor, then many of us might protest. We might try to make the case for common sense and common humanity. Making that case would not mean waging a war of class resentment against the human and civil rights of wealthy individuals. On the contrary, one proof of the moral and political difference between class resentment and class consciousness is precisely the preservation of public courts as a tribune of the whole people.
If that example seems strange or far-fetched, we should consider just one of many legal fictions that have real social force, namely, the legal fiction that a corporation has “individual” rights. In 1886 the United States Supreme Court ruled in Santa Clara v. Southern Pacific Railroad that a private corporation was a natural person under the U.S. Constitution, protected by the Bill of Rights and the 14th Amendment. As Supreme Court Justice William O. Douglas was to write 60 years later, “There was no history, logic, or reason to support that view.” But there it is, enshrined in the majesty of the law; and it remains a stark example of the instrumental use of anti-majoritarian principles to expand the rights of private corporations (under the rubric of personhood and individual rights), and to restrict the public rights of the great majority of real persons. This now belongs to the unfinished business of the American Revolution.
Slavery was conducted for many centuries under the majesty of the law, and the same triumphal constitutionalism continues to give moral and political cover for every kind of corporate plunder and for imperial wars. Against the historical background of such barbarism, Proposition 8 may seem to figure only incidentally. But the principles at stake here have practical consequences going well beyond sexual orientation and marriage.
The American rebels had the great advantage of having the Atlantic Ocean between themselves and Britain. No immense natural boundary divides gay people from straight people, so gay people will have to be a bit more philosophical when we declare our own independence from the Straight State. No doctrine of separatism between gay and straight people is implied here. The real issue is the overbearing majoritarian rule of straight people over gay people. Christopher Isherwood called that social system “the heterosexual dictatorship,” but it was already eroding when he was falling in love with young men in Berlin and Los Angeles in the first half of the 20th century.
The boundaries between gay and straight folks are sometimes quite intimate, for better and for worse. The fact that so many gay people still live in hiding among straight family members, neighbors and workers is one reason our existence gives the religious right such a sense of the uncanny. They never know if the next full moon will turn a smiling sibling into a werewolf, or a kindly neighbor into the Antichrist. The decisive difference between being gay and being straight, according to the gospel of the religious right, is making the right decision for God. Then, the believers say, the decision for marriage between one man and one woman will follow in due course.
In the United States the religious right is now fighting for a comeback in ventures such as Proposition 8. The far-right white evangelicals of the mid-1970s learned the lessons of coalition, as succeeding decades have demonstrated. Proposition 8 proved they could join, and had joined, forces with the most conservative black Christian ministers, and with the Mormon Church and the Catholic Church. The Mormon Church alone pumped many millions of dollars across state lines to drive the campaign for Proposition 8 in California. Proponents of Proposition 8 spent over $40 million in this cause. Opponents spent nearly as much, making this the most expensive battle over a voter initiative in California’s history. But we do not simply get to choose our battles, and anyone who thinks this one was not worth fighting has already decided that gay people are roadkill in the rear view mirror.
During a brief time, roughly 18,000 same-sex couples married in California within the law, walking through the door opened by a state Supreme Court decision that found no constitutional support for the exclusion of such couples from civil marriage (In Re Marriage Cases, 2008). But the religious right began work to reverse that decision by mounting a campaign to place Proposition 8 on the ballot. When that proposition passed, of course it was taken in turn back to the state Supreme Court. Some 36,000 people thus became the stranded winners in the state marital lottery. We were left hoping (against the obvious odds) that California’s highest judges would not draw a line dividing a small number of legally married gay people from a much greater number of gay people who might choose to marry in the future. For lesbian, gay and bisexual people, the majoritarian Wheel of Fortune had turned against civil equality in marriage once again.
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