Sunday, April 28, 2013

Two Weeks in Boston

By Mark Gabrish Conlan • for East County Magazine,
I’m writing this two weeks after the spectacular bomb blast at the finish line of the Boston Marathon. The first images we got of the end of the marathon — the cute Black teenage woman who won it kissing the cup at the finish line — already seem to belong to a dimly remembered history. They were eclipsed by what happened at that same finish line later that day. Two bombs made out of pressure cookers blew up and sent shrapnel ripping through the crowd, killing three people and injuring over 100. At least one victim had to have both his legs amputated, a cruel irony at an event meant to celebrate the triumph of athletes over the limitations of their own bodies.
For the next week we heard voices on the media trying to make sense of the incident when we didn’t know the two most important things about it: who did it, and why. We heard heart-rending stories about the victims, including the eight-year-old boy who’d been waiting at the finish line for his father to end the Marathon, and the 24-year-old woman who’d been waiting for her boyfriend to come in from the race. We heard a lot of speculation, some of it quite cruel, about who the attackers might be and what their motives could just possibly have been.
When two suspects were finally identified —  26-year-old Tamerlan Tsarnaev and his 19-year-old brother Dzhokhar (pronounced “Johar”) — the police chased them, killed Tamerlan in a shootout and put virtually the entire city of Boston on lockdown. It’s indicative of just how much Americans have come to accept the “surveillance society” in the nearly 12 years since the September 11, 2001 attacks (far more extensive, well-planned and lethal than the one in Boston) that almost no one thought it was a big deal that millions of ordinary, innocent citizens were being told to imprison themselves in their homes while the police looked for one 19-year-old and staged their own attack on the civil liberties of millions of people, at an estimated cost of $250 to $333 million per day.
When the Tsarnaev brothers were identified as the prime suspects in the bombing, a lot of people on the radical Right no doubt breathed easier. The Tsarnaevs and their parents had moved here from Chechnya, a rebel province of Russia whose fighters had already committed some pretty heinous terrorist acts of their own, including an assault on a movie theatre in Moscow in October 2002 in which 900 people were held hostage and 130 of them ended up dead (along with 40 of the Chechen fighters). The coverage of that incident in the U.S. media was surprisingly sympathetic to the Chechens, largely because there was good evidence that the deaths actually resulted from the Russian army using chemical weapons in a counterattack on the theatre, but now that Chechen immigrants have staged a terror attack on U.S. soil a lot of Russian authorities are being quite free with their we-told-you-so’s.
Meanwhile, the U.S. Right is presenting the Boston attack as yet another example of the “existential threat” something called “radical Islam” poses to the U.S. They’re pointing to the Tsarnaevs’ — especially Tamerlan’s — apparent log-ins to Islamic Web sites, including an al-Qaeda-sponsored one called Inspire where he supposedly obtained the recipe for the Boston bombs. They’ve also noted a six-month trip Tamerlan Tsarnaev took to Russia in 2011, which may have simply been a visit to see relatives still in Russia or a stint at a so-called “training camp” (located where and sponsored by whom?) where he’s said to have learned to make bombs and carry out an attack. Actually, it’s still not clear whether the Tsarnaevs were committed mujahedin or free-lance wanna-bes who knew no more about how to commit terrorism than what they learned on the Internet, but propagandists on the radical Right who think President Obama is “soft on terrorism,” if not a closet Muslim himself, leaped at the chance to tie the bombing in to “radical Islam.”
Indeed, some of them were doing that even before the Tsarnaevs were identified as prime suspects. Early on during the manhunt, a man named Erik Rush, whose existence had previously been unknown to me but who’s a contributor to the World Net Daily Web site ( and Fox News, sent out a tweet reading, “Everybody do the National Security Ankle Grabs! Let’s bring Saudis in without screening them! C’mon!,” after Boston police briefly identified a 20-year-old Saudi Arabian national as a potential suspect. (He was later cleared) When Rush started getting responses criticizing him for blaming the attacks on Muslims before police had made any arrests, he blasted back, “Yeah, that’s right, they’re evil. Kill ‘em all.”
Rush later said he meant it as sarcasm, but in a column he published to World Net Daily April 17 ( he doubled down on his rage against not only Muslims but the American Left, whom he described essentially as a fifth column that’s allowing Islam to conquer the U.S. “I still maintain that Islam is, by its nature, wholly incompatible with Western society,” the man who calls himself “the other Rush” wrote. “I analogize liberalism, which is promoting this dhimmitude, to Stage 3 cancer in America’s body politic. For the record: While killing people is definitely undesirable, that is what war tends to be about.” Rush explained that the word “dhimmi” is Arabic for a conquered non-Muslim population living under Muslim rule. Its usual meaning is the special tax Christians, Jews and other non-Muslims were charged in medieval Muslim states to be allowed to live there — at a time when Christian rulers were routinely mass-murdering both Muslims and Jews in their countries.

Never mind that when the Oklahoma City bombing, which killed 168 people and injured at least 680 (the most serious terrorist attack on U.S. soil until 9/11), occurred on April 19, 1995, it too was immediately blamed on “Arab terrorists” not only by Right-wing hatemongers but many mainstream media commentators. For a while the only question in the media was which group of “Arab terrorists” had planted the bomb and blown up the Oklahoma City federal building. Then it turned out the culprits were considerably closer to home: a trio of misfit U.S. veterans inspired not by the Koran but William Luther Pierce’s 1978 novel The Turner Diaries, in which a group of white racists seize U.S. nuclear weapons and use them to win a worldwide race war and exterminate all “inferior” peoples.

Appearing on the April 26 episode of the TV show Moyers and Company, journalist and columnist Glenn Greenwald presented some statistics from impeccably mainstream establishment sources like the FBI and the Council on Foreign Relations that from 1980 to 2001, about two-thirds of all terror attacks in the U.S. were carried out by non-Muslim American extremists. What’s more, after 9/11 that percentage actually skyrocketed to 95 percent. A not-quite-so-establishment source, Mother Jones magazine, found that of the 62 mass killings in the U.S. — defined as the murder of four or more people in the same incident — 44 of the killers were white males.

But, as Greenwald argued, we as a society react very differently to a terrorist attack conducted by white Christians than one by Muslims. “Generally, when the person is a white Christian or a white American, there’s an attempt instantly to assure everybody that it’s simply kind of a one-off, that it doesn’t have a political content, that the person is mentally ill, that they’re a lone actor, that they just snap, is usually the jargon, to assure everybody that there’s no political conclusions that ought to be drawn,” Greenwald said. “When the person is Muslim, everything reverses. … There’s an assumption that this bolsters the idea that we face this grave and potentially even existential threat from radical Muslims against whom we’ve been fighting this decade-long war. And it really bolsters the premises of that war by ratcheting up the fear levels and by reaffirming the political convictions in which it’s grounded.”
Thanks to our hysterical overreaction to 9/11, we’ve given the federal government sweeping powers to keep us under surveillance. We’ve trashed our own system of criminal justice and set up so-called “military commissions” to try terror suspects. We’ve sanctioned the use of torture to extract information from detainees, and we’ve abolished the law of habeas corpus and most of the “due process” that is supposed to be available in this country even to those who’ve committed the most heinous crimes. We’ve also meekly accepted much less freedom of movement; thanks to the “security” measures put in at airports after 9/11 (most of which wouldn’t have done jack to stop the actual attacks), air travel has become excruciatingly difficult, and many people (including my mother) who routinely flew places on vacation now don’t bother anymore.

The Boston Marathon attacks will no doubt serve as an excuse to broaden the surveillance state still further. I staffed a booth for Activist San Diego at the Earth Day celebration in Balboa Park April 21 — just across the road from a tall steel tower with cameras on it. It’s an indication of how even activists who criticize the government as frequently as we do have become used to the surveillance state that we didn’t realize what that contraption was until it was taken down at the end of the day. It was set up by the San Diego Police Department to give them a long-distance view in case anybody tried … well, something at an event known to draw 6,000 people per year. We’ve become a population that’s routinely spied on by its own government, and we’ve yielded to the siren song of all authoritarians: “If you’re not doing anything, you have nothing to worry about.”

Indeed, the assumption that we have to sacrifice constitutional freedoms to fight the “war on terror” has become so widespread that when U.S. Attorney General Eric Holder announced that Dzhokhar Tsarnaev would be charged with federal crimes and tried in an ordinary civilian court, he seemed to be apologizing. In the face of criticism from people like Senator Lindsay Graham — who should have known what the statute authorizing military commissions to try the accused 9/11 plotters said because he co-wrote it — that Dzhokhar should be hauled in front of a military commission (and before that kept in custody in Guantánamo and waterboarded like Khalil Shaikh Muhammad?), Holder all but said he was sorry that thanks to the bothersome fact that Dzhokhar was a naturalized U.S. citizen, the law creating the military commissions forbade the government from trying him before one.
The attacks in Boston are full of unintended and bizarre ironies. Not many people remember this, but the marathon began as a commemoration of an ancient struggle against imperialism. In 490 B.C. Greece was under attack from the greatest superpower of the day, the Persian Empire. The Athenian navy had just won a battle off the coast of the city of Marathon — a surprising triumph against the larger, more numerous and presumably better equipped Persian ships — and to tell the folks back home the good news the Athenians sent a slave boy named Phidippides to run the 26.2-mile distance between Marathon and Athens. He made it, croaked out his message — and then died of a heart attack from his exertions. So death at the finish line has been a part of the marathon from its very beginnings.

The ironies get even weirder. The older Tsarnaev brother was named after Tamerlane (Timur the Lame), a conqueror who was born in what is now Uzbekistan in 1336 and formed an army which attempted to restore the empire of Genghis Khan. He was captured by Mongols at age eight, along with most of his family, and turned into what would now be called a child soldier. As an adult, Tamerlane built up a powerful army and became a Muslim, forcing the people he conquered to convert or die. He spent 35 years leading his army in a succession of wars throughout Europe, Asia and what is now known as the Middle East, that historians believe led to the deaths of 5 percent of the world’s population.

And not many people remember this, either, but Boston was also where the 9/11 attacks started. The planes that crashed into the World Trade Center in New York were hijacked from Boston’s Logan Airport. They were scheduled to fly to West Coast destinations and were chosen by the 9/11 attackers for that reason. In order for the attacks to work, the planes had to be full of fuel so they would incinerate the buildings at which they were aimed.

The U.S. radical Right has benefited from the Boston attack for reasons other than the renewed focus on so-called “radical Islam” as the alleged fount of all anti-U.S. terrorism. The U.S. Senate defeat of a common-sense bill to require background checks for all gun purchases — a proposal supported by 90 percent of the American people, including (one would hope) most rational and responsible gun owners — happened while the Tsarnaevs were still at large. The Boston attacks seemed to be proving the National Rifle Association’s point that there are other ways to murder a lot of people at once besides guns. That became a little harder to argue once the fourth victim, MIT police officer Sean Collier, was — you guessed it — shot with a gun.
And because the Tsarnaevs were immigrants, the attacks could also derail hopes for a bipartisan effort on comprehensive immigration reform. Never mind that the Tsarnaevs came here as legal immigrants, political refugees from a breakaway province of Russia whose struggle the Right actively supported through most of the last decade thanks to their continuing bizarre idea that the biggest remaining chunk of the former Soviet Union still constitutes a major threat. Remember when Mitt Romney said during the 2012 Presidential campaign that Russia — not China, not North Korea, not “radical Islam” — was our biggest foreign policy problem? More rational observers shook their heads and wondered what decade Romney thought it was.
What the tragedy in Boston really means is how much the human race is still wedded to the notion it took with it when it exited the caves: that the world belongs to the strong, and the way to get what you want is to take it away from other people by force, and kill them if necessary. It’s a notion we like to think we’ve risen above as we’ve become “civilized” — even though all too often “civilization” is little more than the thin veneer of beneficence a handful of rich people at the top of a society use to extract the fruits of the labor of the many below them — yet it’s a notion that’s at the heart of too many of the stories we tell each other and the stories the giant entertainment companies tell us.
While researchers have never been able to establish a one-on-one link between viewing a particularly violent movie or playing an especially brutal video game and real-life murder and mayhem, it’s beyond credibility that the unending flood of violent entertainments with which we while away our spare time has nothing to do with the increasing number and lethality of real-life violent attacks. The National Rifle Association had a point when they argued that Hollywood bore some of the responsibility for the shootings at Newtown, Connecticut. They were saying that largely to get the gun manufacturers, whose contributions largely keep the NRA and its publications in business, off the hook, but exactly what do you expect when you make military-grade weapons available to just about anyone who wants and can afford them and you feed them a steady diet of mythology that exalts violence as a solution to one’s personal demons and social dissatisfactions?
Because the Boston attackers used bombs instead of guns, and because the prime suspects (especially the dead one) had a history of interest in and some involvement with radical Islam, there’s a tendency to classify the attack on the Boston Marathon as another 9/11. Perhaps the real parallels are with the mass shooting near Tucson in 2012 and the attacks in Aurora, Colorado (in a movie theatre that was showing a particularly brutal film, the Batman-series movie The Dark Knight Rises) and Newtown, Connecticut later — and all the other mass killings that have happened not only here but around the world, including the one in Norway whose perpetrator claimed a Right-wing political inspiration but likely as not was motivated by more personal demons.
Mass murder — whether it comes with the thin veneer of a political or religious ideology, or doesn’t try to disguise itself as anything but naked madness and hate — is ultimately about the revenge of the powerless. Screwed-up individuals or small groups nurse their hatreds of their enemies, real or imagined, and plan elaborate scenarios in which the people they’re targeting often have little or no rational connection to the sources of their grievances. In 1974, Hans J. Morgenthau published an article in The New Republic in which he called terrorism a “revolutionary tantrum,” the last resort of political revolutionaries who realized that the system was way too powerful for them to overthrow and all they could do was strike some sort of violent blow that, like a child’s temper tantrum, would tell the authorities, “I’m here! Don’t ignore me!
When Morgenthau wrote that, he was thinking of the European terrorists of his time, groups like the Red Army Faction, also known as the Baader-Meinhof Gang, in Germany and the Red Brigades in Italy, as well as what was left of the Weather Underground in the U.S.: groups rooted in the Left, who not only maintained their political pretensions but expressed them in turgid, multi-page manifestoes that explained in excruciating detail how they rationalized their attacks. Today’s terrorists are more likely to be psychologically than politically or religiously motivated — though religious terrorism not only exists in the U.S., it’s been an unacknowledged part of a remarkably successful campaign to nullify American women’s right to reproductive choice — but there’s no reason to believe that the attack on the Boston marathon was anything more (or less) than the work of two screwed-up young men who expressed their own hatred and alienation through the fig leaf of some fragments of ideology they picked up on the Internet.
And the real tragedy of Boston — and of Newtown, Aurora, Tucson and Norway — is how easily these things happen. It’s in how our hyper-violent entertainments prime certain individuals to see violence as the solution to their personal issues, and also how absurdly easy it is for them to assemble the tools with which to commit mass murder: the arsenals of military-grade weapons and the ingredients for homemade bombs (and the on-line instructions for how to make them). Our world gives would-be mass killers access not only to the elaborate paraphernalia they need to do their dirty work, but a steady stream of encouragement that pours out from our movie and TV screens and teaches them that the bomb, the gun, the knife is the way to strike back at whatever or whoever you think “hurt” you.

Saturday, April 06, 2013

Marrying Your Gay First Cousin

By Mark Gabrish Conlan • for East County Magazine,
On March 26 and 27, the U.S. Supreme Court heard two major cases over whether same-sex couples have a constitutional right to marry. On March 26 they heard arguments on whether Proposition 8, which California voters passed in November 2008 to short-circuit the ruling of the California Supreme Court that the state’s constitution did not allow it to deny marriage to same-sex couples, is unconstitutional under the equal protection clause of the 14th Amendment to the U.S. Constitution. The next day they heard the case of Edith Windsor, who legally married her long-term partner Thea Spyer in Canada in 2007, then got socked with a federal estate tax bill of $367,000 because the federal government didn’t recognize her marriage under the so-called “Defense of Marriage Act” (DoMA) passed by Congress in 1996.
The two cases rest on somewhat different legal issues, and it’s quite possible the court could throw out Proposition 8 and uphold DoMA — or vice versa — but the underlying issues are the same. Are Gay and Lesbian people equal to everyone else, and therefore entitled to legal recognition of their relationships on the same basis as everyone else? Or are they somehow “different,” “alien,” apart from the common run of humanity and so unique that their relationships should be treated differently and not given the same respect heterosexuals can claim from society by marrying each other?
Not that this basic issue was always kept front and center in the actual hearing. There was a lot of talk on such legal arcana as “standing” — whether the people in court actually have a right to legal relief — and “scrutiny,” the level of review the laws forbidding legal recognition of same-sex marriage should be subjected to for the Court to decide on whether they’re constitutional. Indeed, in the Prop. 8 case attorneys on both sides — Charles Cooper, representing the initial sponsors of the initiative; and Ted Olson, on behalf of the two couples (one Gay, one Lesbian) who filed the suit — got lectured by chief justice John Roberts when they tried to talk about the merits of the case without first addressing standing.
Standing became an issue in the case when the people usually charged with defending federal and state laws against constitutional challenge — the President, state governor and federal and state attorneys general — decided not to on the ground that they believe Prop. 8 and DoMA are unconstutional. Instead, Proposition 8 was defended by the five people who organized the campaign to put the measure on the ballot in the first place — the so-called “initiative proponents” — and the defense of DoMA went to George W. Bush’s solicitor general, Paul Clement, as representative of something called the Bipartisan Legal Advisory Group (BLAG). BLAG was founded by House Speaker John Boehner and, despite the “bipartisan” in its name, really only represented the House Republican leadership. Originally Boehner had got Nancy Pelosi, leader of the Democratic minority in the House, to join BLAG — but when she found out its purpose was to defend DoMA, she bailed.
The possibility that the Supreme Court might throw out either or both of the marriage equality cases on the ground that the Proposition 8 proponents and BLAG don’t have standing suggests they might reach a progressive outcome via conservative reasoning. “One thing conservatives who advocate judicial restraint push is a very limited view of what constitutes a ‘case or controversy’ [under Article III of the Constitution],” San Diego attorney Eric Isaacson — who filed an amicus curiae (“friend of the Court”) brief in the Prop. 8 case on behalf of the California Council of Churches and several other liberal and progressive faith organizations — told a community meeting in Hillcrest a week before the Court hearings. “That allows them to throw out cases filed by the American Civil Liberties Union (ACLU), environmental organizations, and the like.”
If the Court rules that the Prop. 8 proponents and BLAG can’t prove that they were personally hurt by the lower-court rulings and therefore don’t have standing, they could restore same-sex marriage to California and give Edith Windsor back her $367,000 — but they’ll also bolster their decades-long quest to close the courthouse door to progressive individuals and organizations seeking social change through litigation. Indeed, at least two justices, Anthony Kennedy and Sonia Sotomayor, hinted that they may do something even more extreme than throw out the cases on standing; they may “DIG” them. “DIG” — an acronym for “dismissed as improvidently granted” — is one of the dirtier little secrets in Supreme Court jurisprudence. It’s basically the Court saying, “Oops, we made a mistake when we agreed to hear this. We’re not ready to decide this yet. Come back later, and in the meantime the lower-court ruling stands.”
That would be a mistake, columnist David Sirota argued in a March 28 post on ( According to Sirota, Kennedy and Sotomayor were saying that the Supreme Court should wait until there’s more of a public consensus on same-sex marriage either way before they rule on whether or not banning it is constitutional. That, Sirota argued, would be ducking the Court’s responsibility to enforce the Constitution. “Judges are supposed to prevent a tyranny of the majority from trampling the constitutional rights of minorities,” he wrote. “As they did in the Loving v. Virginia case overturning bans on interracial marriage, justices are supposed to uphold the Constitution even if public opinion doesn’t support them doing so. That can only happen if judges are ruling exclusively on the constitutionality of discrimination, and not on whether such discrimination happens to be supported by the majority of citizens.”
That’s an interesting comment given that the entire strategy of the forces opposing marriage equality was, from day one, to freeze the unequal status of Gay and Lesbian couples into law while public opinion was still on their side. In 1993, when the Supreme Court of Hawai’i hinted that they might rule that banning same-sex marriage was a form of discrimination based on gender (i.e., a man could marry a woman but a woman couldn’t, and a woman could marry a man but a man couldn’t), marriage equality and Queer-rights opponents mobilized to pass the first Proposition 8-style state constitutional ban before the court had a chance to make its ruling final. What’s more, Congress passed DoMA in the first place to avoid the “threat” that other states would have to recognize same-sex marriages performed in Hawai’i under the clause of the Constitution that requires every state to give “Full Faith and Credit … to the public Acts, Records, and judicial Proceedings of every other State.”
Paul Clement, the attorney defending DoMA at the Supreme Court March 27, admitted as much when he explained that when DoMA passed, “Congress [was] addressing this issue because they are thinking that the state of Hawai’i through its judicial action is about to change the definition of marriage from a way that it had been defined in every jurisdiction in the United States. … Congress in 1996 at that point says the states are about to experiment with changing this, but the one thing we know is all these federal statutes were passed with the traditional definition [of marriage as between one man and one woman] in mind. … [W]hat Congress was trying to do was trying to provide uniform treatment of taxpayers across jurisdictions.”
This was actually a major departure from the way differences in marriage laws between U.S. states have usually been handled. Generally, if a U.S. state says you’re married, you’re married everywhere in the country, even if your marriage would not have been legal in the state to which you move. Some states allow first cousins to marry; others don’t. Some allow people as young as 13 to marry; others don’t. U.S. law always handled marriage as a matter to be regulated by the states, with one big exception. In 1890, the federal government massed an army on the borders of Utah and told the Mormon-dominated state government that if they didn’t stop allowing polygamy, the feds would invade. The Mormon church’s leader had a handy revelation that polygamy was no longer acceptable (at least in this lifetime; they still believe in it in the next world, after you die), the feds backed off, Utah got admitted to the U.S. as a state and the crisis passed.
DoMA created another big exception to the rule that the full faith and credit clause requires states to recognize other states’ marriages. What’s more, according to the official House of Representatives report on the bill, it did that “to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.” When Justice Elana Kagan quoted that from the bench during Clement’s argument, he sputtered a bit. “We are not going to strike down a statute just because a couple of legislators may have had an improper motive,” Clement said. “Congress was trying to promote democratic self-governance … in a situation where an unelected state judiciary in Hawai’i is on the verge of deciding this highly contentious, highly divisive issue for everybody, for the states — for the other states and for the federal government.”
That’s the big secret of same-sex marriage: if you get rid of DoMA — not only the clause at issue in the Windsor case that bars legally married same-sex couples from receiving federal benefits given to legally married opposite-sex couples, but also the one, not at issue in the current case, that allows states to refuse to recognize same-sex marriages from other states — you essentially have marriage equality nationwide. Even if your state has a legal ban on same-sex marriage, you could travel to a state — or, like Windsor and her late wife did, a foreign country — that allows it, then demand that your home state accept you as married and give you all the benefits. Indeed, if the Court throws out DoMA but upholds the power of states to limit marriage to opposite-sex couples, one could readily imagine Gay and Lesbian travel agents booking package tours for sufficiently well-heeled same-sex couples to combine their wedding and their honeymoon via a vacation to a marriage-equality state — much the way Israeli travel agents book trips to Italy so opposite-sex Israeli couples who aren’t sufficiently Orthodox Jews to qualify for marriage at home can get hitched, ironically, in the home country of Roman Catholicism.
But DoMA wasn’t enough for the anti-Queer, anti-marriage crowd. Over the next two decades, they sponsored both legislative bills and ballot measures aimed at keeping marriage throughout the U.S. limited to opposite-sex couples. And they won this battle in every state in which they fought it — with just one exception, Arizona, which voted down a same-sex marriage ban in 2008 but passed it in 2010 — until November 2012. Then their winning streak ended and four states (Washington, Maine, Maryland and Minnesota) voted against them. That’s what Roberta Kaplan, Edith Windsor’s attorney, was talking about when she told the Court March 27, “No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way Gay people have.”
One curious aspect of the March Court hearings was that the defenders of both Prop. 8 and DoMA said those laws were not intended to do anything more than delay legal recognition of same-sex marriages. Clement said that by passing DoMA, Congress was saying, “Let’s take a time-out here. This is a redefinition of an age-old institution.” Likewise, Charles Cooper, representing Prop. 8, called it a “pause button” pressed by anxious California voters unsure that they wanted to extend marriage to same-sex couples.
Solicitor-general Donald Verrilli, arguing on behalf of the U.S. government — which had taken the position that Prop. 8 should be overturned, though in a way that limited the effect of the ruling to California only — denounced this as the nonsense it is. “California did not through Proposition 8 do what my friend Mr. Cooper said and push a pause button,” Verrilli argued. “They pushed a delete button. This is a permanent ban. It’s in the [state] Constitution. It’s supposed to take this issue out of the legislative process.”
And what comes through most strongly in the transcript of the Court hearing is how little justification there is for not allowing same-sex couples the option of legal marriage. There are basically only two justifications for banning same-sex marriage: history (marriage has generally been defined as a heterosexual union) and procreation. The proponents of Prop. 8, DoMA and similar laws are so obsessed with the fact that opposite-sex couples can make babies with each other and same-sex couples can’t that after the Court hearings, cartoonist Tom Tomorrow joked that perhaps the marriage ceremony should be rewritten as, “Do you, penis, take this vagina … ”. When Charles Cooper defended Prop. 8 by saying, “Same-sex couples and opposite-sex couples are not similarly situated,” that’s what he had in mind.
Asked by Justice Kagan if he could come up with any state interest that would be harmed by allowing same-sex couples to marry, Cooper said, “Redefining marriage to — as a genderless institution could well lead over time to harm to that institution and to the interests that society has always — has — has always used that institution to address.” Pressed on the point by Justice Kennedy, Cooper said, “Redefining marriage will have real-world consequences, and … it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.” In other words: sorry, Gay and Lesbian couples; we can’t allow you to get married because something bad might happen if we do.
Indeed, one maddening thing about marriage equality opponents is their insistence that we can’t “redefine” marriage. Marriage has been continually redefined as long as it’s existed. It always amuses me when opponents say they want to uphold “the traditional Biblical definition of marriage as one man and one woman,” not only because under the whole idea of freedom of religion no one tradition’s holy book should be the basis of legislation, but also because the traditional Biblical definition of marriage is not one man and one woman. At least in the Old Testament, it’s one man and however many women he can support financially — which in practice made polygamy a luxury of the rich. The limit of marriage to one man and just one woman was a redefinition imposed on the Jewish religion — and its offshoot, Christianity — by the Roman Empire.
Marriage once had far more to do with property rights than with romantic interests. Marriages were arranged either by parents, relatives or professional matchmakers, and at least in the upper classes they were far more like today’s corporate mergers — bringing two large estates together to improve their business prospects — than today’s marriages. The idea that people should choose their own marriage partners, and that they should do so on the basis of love, companionship and mutual compatibility instead of property rights, was a redefinition of marriage from the 19th century. The idea that men and women should enter into a marriage as economic equals and women should be allowed to keep sole ownership of the property they had when they married, instead of it all automatically becoming their husbands’ property the moment they said, “I do,” came even later in the 19th century. And the idea that a husband could rape his wife — that marriage did not mean a man could have sex with his wife any time he wanted, whether she wanted to or not — didn’t become part of California law until (get ready for a shocker) 1977.
So there’s nothing new — or particularly sinister — about “redefining” marriage. And the reason extending marriage to same-sex couples is on the table now is our understanding of Queer people and their relationships has grown. The answer to Justice Antonin Scalia’s typically snotty question of just when it became unconstitutional to discriminate against same-sex couples in marriage law is the same as the answer to when it became unconstitutional to segregate people in education and public accommodations on the basis of race: when enough people realized that there were no differences between Black and white people, or between straight and Queer people, that justified the discrimination. In both cases it took decades of principled, courageous and sometimes risky activism on the part of the minorities victimized by such discrimination to bring about the social consensus that the discrimination was wrong. And in both cases it was the activism that came first, the legislative and judicial acknowledgment that came later. That’s how social change works, and that’s what’s ultimately going to bring about marriage equality for same-sex couples no matter what the Supreme Court decides about the two cases before it now.