Tuesday, October 27, 2009

California Judge Vaughn R. Walker Tackles Procreation Argument: Prejudice as the Heart of Arguments vs. Same-Sex Marriage

Today’s New York Times has a fascinating article by Adam Liptak commenting on the decision of California federal Judge Vaughn R. Walker two weeks ago to permit a challenge to proposition 8 to move forward in the courts. Theodore B. Olson and David Boies have filed suit against prop 8 on the ground that this removal of the right of marriage from California’s gay citizens violates the U.S. Constitution.

Liptak reports that Judge Walker asked Charles J. Cooper, the attorney fighting to retain the ban on same-sex marriage, what harm would result if gays and lesbians were permitted to marry? Cooper is known for his erudite, well-researched briefs.

His reply to Judge Walker’s question: “Your honor, my answer is: I don’t know. I don’t know.”

I don't know.

This is a fascinating admission. One of the unintended effects (unintended by opponents of same-sex marriage, that is) of proposition 8 has been, in my view, to demonstrate to ever-wider groups of American citizens that, at its heart, the drive to outlaw same-sex marriage and to strip gay citizens of the right to marriage where it has been recognized rests on no rational, no compelling arguments.

It is a drive fueled solely by prejudice, and that prejudice is becoming more apparent to growing numbers of Americans in the wake of prop 8. The well-worn argument that allowing gays to marry will harm the institution of heterosexual marriage or society in general rests on no sound evidence. The weight of evidence against this argument is considerable.

We all benefit when we permit those in long-term committed same-sex familial relationships to marry, to build stable unions that support the social contributions and constructive gifts of LGBT citizens to society. We all suffer when we deliberately target a group of citizens with no sound reason for adding burdens to their lives, thwarting their ability to live fulfilling lives that permit them to contribute to society. We all suffer when we enshrine prejudice in our core institutions, and when we cannot offer even a whit of a sound argument for that prejudice, except to point to it as though prejudice justifies itself, and to ask that we be permitted under law to continue acting out our indefensible prejudice towards a targeted minority.

Societies built on prejudice and disdain for vulnerable minorities are not healthy societies. People who wallow in prejudice and disdain are not healthy and admirable people.

As I’ve noted on this blog, one of the irrational arguments that continues to carry weight with some religious and secular groups opposed to same-sex marriage is that marriage must be reserved to opposite-sex couples because it is all about procreation. Allow the gays to marry, and you undermine what marriage is all about: having children.

As I’ve also noted, this argument doesn’t bear inspection, because even those who want to forbid marriage to same-sex couples are generally unwilling to push for legal bans that would refuse the right of marriage to opposite-sex couples beyond childbearing age, or opposite-sex couples unable to conceive for medical reasons, or opposite-sex couples who do not intend to have children. If we—if churches—marry such heterosexual couples, then forbidding gay couples to marry on the ground that only those who can and will procreate should marry is illogical.

At its heart, the argument against same-sex marriage based on procreation is all about sheer prejudice—the prejudice that the symbolism of marriage revolves around a man and a woman, and that this symbolism is destroyed if we permit two persons of the same sex to marry. It’s all about gender, in the end, about biology in its crudest forms. It’s all about keeping men men and women women.

It’s all about keeping ourselves comfortable with what we think we know of men and women. It’s about assuring ourselves that the worldour world, our little worlds—works, that everyone is in his or her place. And that God is in heaven, securing the order of our little worlds.

Interestingly enough, the discussion of same-sex marriage in Judge Walker’s California court two weeks ago surveyed this discussion about gender and procreation carefully. Liptak reports:

In the courtroom, Mr. Cooper’s arguments seemed to fall of their own weight.

The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order to channel naturally procreative sexual activity between men and women into stable, enduring unions.”

Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

Mr. Cooper said no.

“And I might say it was a very happy relationship,” Judge Walker said.

“I rejoice to hear that,” Mr. Cooper responded, returning to his theme that only procreation matters.

Later in the argument, Mr. Olson added his own observation. “My mother was married three years ago,” he said. “And she, at the time, was 87 and married someone who was the same age.”

“I rejoice to hear that,” Mr. Cooper responded, returning to his theme that only procreation matters. Even when his argument has been exposed as irrational, as grounded solely by prejudice, Mr. Cooper returns to the central contentions of said argument.

But that is what prejudice does. When it has been defeated on every other ground—in the court, in the classroom, in reasoned argument—prejudice predictably reverts to its central theme in exactly the same way that a parrot reverts to its mimetic activity.

Because that theme is based solely on mimetic repetition of a mantra that seems right to the person parroting the themes of prejudice—regardless of reason or humanity. When my high school was finally integrated in 1967, several white boys forced one of the handful of black students who integrated the school to stand in front of the rest of us one day in gym class, when the coaches were absent.

His assignment: justify interracial marriage. The argument he was asked to answer? If God had intended the races to marry, why did He (these boys knew who God was: He was made in their image) create a black race and a white race and then place them on separate continents? Do you see a redbird mating with a blackbird?

As these classmates peppered my new classmate with these “arguments,” I thought to myself, “These statements don’t stand to reason at all. If we’re going to talk about the the different colors of birds as a basis for rejecting interracial marriage, what do we do with the well-known fact that male and female birds of the same species are frequently different colors?”

I kept my mouth shut. This was not a court in which reason was designed to prevail. It was a court set up to demonstrate the power of some over others. I already knew about prejudice and power and what they could accomplish—the violence they could elicit—in gym class from previous incidents in which I had attracted the attention of the other boys, as someone tagged effeminate and weak, a queer. I wouldn’t accomplish much for my embattled classmate by siding with him.

The arguments put forth by my classmates—God made the races black, white, red, and yellow, and separated them geographically, because God did not intend for the races to mix—would, I was later to learn, form the legal basis used to outlaw interracial marriage right up to the period of Loving v. Virginia. These timeworn, shoddy, irrational, prejudice-ridden non-arguments were cited even by judges who sought to upheld the ban against interracial marriage in the case of Loving v. Virginia.

And then the arguments vanished. They fell away like tissue paper as people's awareness of the prejudice they enshrined began to grow. They had to vanish, when shifts in popular consensus showed them for what they were: nothing but pseudo-religious rhetorical coverings for ugly, indefensible prejudice. And so it will be with same-sex marriage, eventually, and with the “religious” “arguments” on which bans against same-sex marriage—and against the lives and humanity of gay people—are based.