Friday, January 22, 2010

Reflections on Proposition 8 Trial

I've had the privilege of sitting in for part of the proposition 8 trial (Perry v. Schwarzenegger), yesterday and this morning.
The trial has been incredibly interesting, although I have to say, the parts I sat in on were kind of slow.

I'm not a big fan of similar-gender marriage as a goal. And I'm dubious about the chances that this trial will succeed. But I have to say, it is doing an amazing job of revealing what the debate over similar-gender marriage is really all about: the prejudice that Evangelicals (and various allies) have against queers.

I'm convinced that this wouldn't be a big issue item on "the gay agenda" if the Evangelicals hadn't shoved it on us. An excellent book Courting Justice describes how individual queers have for decades (at least back to 1963, if not before) have tried to get some sort of official recognition of similar-gender marriage rights in the courts. But the issue didn't take off for the wider queer population.

Even after the Hawai'i decision in 1993, it still didn't take off. Even in 1998, when Alaska and Hawai'i were the first states to vote to restrict marriage, the wider gay community wouldn't touch marriage. A few people wanted it, but many of us thought of it as a badge of heterosexuality, a cowardly dodge from realizing one's full queer potential. A very bizarre "right" to demand.

But by 2000 there were the beginnings of a shift, and by 2004, it was absolutely clear we were being attacked with this thing, and we'd better start defending ourselves. Tell someone loud enough that they can't do something, and you know what they'll want to do next.

immutability, identity/behavior/desire
At any rate, here we are, many not excited about similar-gender marriage, but pissed off by being attacked as pedophiles, unfit parents, mentally deranged, sinful, and the certain cause for the ruin of Western Civilization.
In today's grueling 5+ hour cross-examination, Prop 8 lawyer Nielson badgered anti-prop 8 witness Gregory Herek with hundreds of variations on the same theme, trying to get him to say that homosexuality is neither definable nor immutable.
It is fairly clear that what the pro-prop 8 side was trying to do today is to make two claims. First, that homosexuality can't be clearly and unambiguously defined in the same way for all contexts, so homosexuals shouldn't be considered for equal protection under the U.S. constitution.
Second, that people's sexual orientation can change over time, and if so, which "class" a person fits in is ambiguous, making it impossible to consider equal protection under the U.S. constitution.

This seems like a pretty risky strategy on their part, since the exact same logic would lead one to conclude that religious affiliation should not be a basis for seeking equal protection. After all, one of the central tenets of Evangelical Christianity is that one's religious affiliation can change, and even ought to change in order to become 'saved'. Furthermore, it is not possible to define religious affiliation in clear and un-ambiguous terms.
Nielson hammered away at the themes of "identity, behavior, and desire" or words to that effect, as being multiple dimensions along which one could define sexual orientation, for research purposes.
Identity: "What do you call yourself?"
Behavior: "What have you done?"
Desire: "What do you want?"
A nearly-perfect analogy could be applied to religious affiliation, and the first two dimensions are routinely differentiated by sociologists studying religious affiliation. So should religious affiliation not be considered for equal protection because some people might define themselves as "Catholic", but not attend services, while others would decline to identify any particular denomination while attending services regularly?

Also, another category traditionally considered for equal protection would also fall apart under this logic, namely marital status. One's marital status can change over time (by becoming married, or becoming widowed, separated or divorced). Should it not be protected as a result? In this case, it is a change that is clearly under conscious choice (one certainly hopes that marriage doesn't happen by accident, or for unknown reasons).

The plaintiffs lawyers, for reasons I don't understand, haven't yet gone for the jugular on these points. Why not freely admit that sexual orientation changes over time, and is devilishly difficult to define in unambiguos terms? That doesn't seem to have much to do with whether a "class" of people should be protected from discrimination. Then come right back at 'em. Instead, the plantiff's witnesses have mentioned, from time to time, that ethnicity and race aren't easy to define either, and what "class" one "belongs" in can change over time. True, but the analogies between religious affiliation and sexual orientation seem more apt to me, and have the added advantage of putting it right back on their plate.

why get hung up on choice?
Another issue that Nielson fought over with Dr. Herek was the degree to which people's changing sexual orientation is under conscious control. Knowing what I know now, I would choose to be gay. But back in high school, when I was struggling to figure it out, I would have done anything to "choose" heterosexuality. It would have been easy. It would have made my parents happy. Heck, I even tried to be heterosexual - on my second "date" the girl laughed out loud when I said I thought it was a date, saying "But Bill, you're gay!" Sigh, I miss Rachelanna.

But back to the issue at hand, I think it's perhaps too easy to say that Evangelicals often believe homosexuality is a choice (conscious or otherwise) because their understanding of the Bible is that it is a sin, and that much like stealing, one may choose to "do" or not "do" no matter how strong the urge.

But I wonder if there isn't another reason that's just as strong. By enacting and re-enacting, and re-enacting, and
re-enacting stories about "coming to the Lord", Evangelicals narrate to themselves and each other a story of conscious choice about a fundamental aspect of their being. I've listened to enough religious right radio to know that spontaneous conversion isn't nearly as common as stories of spontaneous conversion, which are ubiquitous.
Perhaps the belief that homosexuality is chosen reflects these continuously repeated narratives about choosing to be saved. Perhaps insisting that homosexuality is chosen despite all available evidence is really another means to re-inforce their own narrative of choice in matters religious.

In the past, I've pondered the fact that gay men tend to reinforce innate-ness and lack of choice in their coming-out stories. Mirroring the process above, when we tell and re-tell our stories to one another, these characteristics of innate, unchosen immutability become more and more central to our sense of self and identity. I think that's a lot of how I became gay, anyway.
I was Bill, then I became gay Bill. I didn't become gay out of being straight, I became gay out of unformed nothing-ness because it was the social construct available to me that best fit who I was, innately. In another setting, I might well have become celibate, or str8, or something like it, depending on what was available to me in the way of social role narratives.
Now that my gay identity is fully formed, I no longer need to tell coming-out stories to reinforce my sense of who I am, and rarely do. Part of that is that everyone who
needs to know already knows, but mostly it's because I don't need to tell that story any more to know who I am.

Hate crime statistics
Yesterday, one of the prop 8 lawyers tried to run an event in the Oppression Olympics by comparing the number of crimes reported as being bias-motivated around sexual orientation to the number reported as being bias-motivated against Judaism.
I was shocked when the witness seemed to fall for it. He ended up giving a fairly reasonable response, but the premise that these numbers would be in any way comparable I find ludicrous.
As I covered at length in a previous post, the numbers of
reported bias-motivated crimes appear to indicate, if anything, an environment that is relatively less hostile to queers.
Perhaps a minor point, but I was surprised that the plantiffs' lawyers didn't seem to latch on to it.

History in the making
The most exciting thing about it, for me, was the feeling of being at the moment of "history in the making". This trial is big. In the league of the Scopes monkey trial, Bowers v. Hardwick, Lawrence v. Texas. It may not be Roe v. Wade or Brown v. Board of Education, but it's up there, a massive culmination of social forces distilled into one bundle (that
this Supreme Court will likely fumble). It will be a major reference in the evolution of queer history, no matter the result.
When similar-gender marriages were first issued in Massachusetts, I went up to Boston and sat on the steps of City Hall, chatting with a handsome stranger. I was moved far more than I thought I would be.
When similar-gender marriages were re-legalized in California, I went to City Hall, and snapped hundreds of photos, mostly of a pair of handsome strangers getting hitched. I was moved to tears repeatedly that day.
I feel fortunate, to have been in the right place at the right time, to bear witness these momentous events.


  1. Hey Bill,
    Interesting post. But before you decide you are no fan of similar gender marriage you need to think a bit more about folks like me in bi-national relationships that without marriage as an option had to choose between love and country (I chose love, of course.) Also for queer couples with children, I believe marriage offers them something genuinely different from DPs. Prop 8 may answer why now, but as for why, it was only a matter of time before people demanded equality for marriage. For me this has nothing to do with following traditional/historical models of marriage and everything to do with earning the rights and privileges afforded married couples in the US.
    In any case I am glad you were able to be there today. I am following the trial closely via live blogs and am fascinated, and occasionally moved to tears.
    Wayne (in Montreal)

  2. Like Wayne, thought I understand that there are individuals that simply have no interest in marriage, I cannot understand how a fellow member of the LGBT community does not feel that full equality - to include State & Federal recognition of out relationships and households through marriage - is not a worthy goal.

    It is true that CA's DP laws gives a same-sex couple everything that marriage gives oposite-sex couples, but for us it ends at the state line. Say you and your partner decide to take a trip up to Lake Tahoe. If you're on the Nevada side of the lake and one of you is hospitalized the other can be denied access to the other. If it's worse than just an accident, you do not have the rights to claim remains or belongings. If you're pulled into court over some legal matter, you can be compled to testify against your partner under penalty of contempt of court.

    'Marriage' is the only legal structure that takes these situations, Wayne's concerns, and a whole lot more, into account. Just because same-sex marriage is legal doesn't mean that we all have to get married - but we'd have that CHOICE.

    BTW, I'm a member of the '18K Club' (those that were married before Prop 8 went into effect), but since my partner's job forced us to move to Nevada, it's worthless here.

  3. I don't understand what all this fuss is about. Two consenting adults should be allowed to marry. End of story. This country has a history of trying to tell people what they can or cannot do because they belong to a particular group. If you look at the history of America, beyond all the glory and idealism there is oppression and pain. For every gain, someone lost. For every version of history told in history books, there is a version that is never told. I am heterosexual, but I still feel that an attack on gay rights is an attack on me and all humanity. It would be wrong in every sense for me not to speak out. This trial matters, because having a choice matters.
    I have friends who are gay, and if I didn't speak out I wouldn't be able to call myself their friend.
    Flash back 40+ years ago to the days of the Civil Rights movement; I would have wanted someone to speak up on my behalf.

    "Our lives begin to end the day we become silent about things that matter"
    -Martin Luther King Jr

    "In the End, we will remember not the words of our enemies, but the silence of our friends."
    -Martin Luther King Jr.

  4. The whole question of changing sexual identity really interests me. Over time as I approach 40 I feel less and less "gay." And it's not because I reject some self-perceived notion of what constitutes the gay community, and it's not because reject gayness in lieu of queerdom. It's that my identity and my sexual interests and attractions and my sense of self have changed so much over time and become so specific that I don't feel like a gay man anymore on some levels. How I see myself and what I like to do in sexual contexts... well it's still mostly male-focused (including transmale-focused), but it doesn't feel gay to me anymore, or rather it feels like gayness is this vast pool where only tiny parts of it resonate for me. I don't know what to call myself. "Gay" doesn't work anymore, "bisexual" feels strangely closer, "top" definitely works but doesn't quite cover it. Maybe labels don't matter for me on a personal level. The older I get, the more I identify with my father than anyone else.

    As for marriage, I live in a country where it's available regardless of gender. I struggle a bit with the argument about whether or not it's something queer community resources should be devoted to as opposed to something more radical. To me the problem with that argument is that it fails to acknowledge the likely truth that marriage access really does resonate for more same-sexers than other important issues like economic justice for trans people. No easy answers here.