Politics & Society

U.S. / Perry v. Schwarzenegger and the nature of marriage

Suzanne Lewis

venerdì 12 febbraio 2010

In November of 2008, the people of California voted to pass a ballot proposition and constitutional amendment called the California Marriage Protection Act, or Proposition 8, which added a new provision to the Declaration of Rights of the California Constitution. The amendment states: “Only marriage between a man and a woman is valid or recognized in California” and went into effect on the day after it was passed. In the months leading up to the vote, proponents of the amendment spent $39.9 million, while the campaign to defeat it spent $43.3 million, making it the most expensive campaign of any (except the US presidential election) in America. Proposition 8 does not invalidate marriages between gay couples already granted by the state before it was passed, and it has no bearing on civil unions or domestic partnerships, both of which are a possible means whereby gays receive the same legal benefits as married couples. Thus, the battle over Proposition 8 concerned only the definition of the word “marriage.”

Since the passage of Proposition 8, gay rights advocates have redoubled their efforts to secure the legal means to marry. Soon after the amendment had taken effect, two lawyers, Theodore B. Olson, a prominent conservative and the former solicitor general under President George W. Bush, and David Boies, a Democrat and the trial lawyer who opposed Olson in Bush v. Gore, joined forces to test the new amendment with a court case, Perry v. Schwarzenegger. These two unlikely partners represent two gay couples, who argue that the new amendment has infringed on their civil rights. Meanwhile, the Attorney General of California, Jerry Brown, has refused to defend the case, because he says that Proposition 8 violates the 14th Amendment of the US Constitution and should be struck down. Instead, the official proponents of Proposition 8 stepped forward and offered to defend the lawsuit.

The judge in the case, Vaughn R. Walker, has allowed the lawyers for the plaintiffs to call a series of expert witnesses to testify concerning the history and nature of marriage (from a cultural standpoint), the history of discrimination against gays in the United States, the psychological effects for gay people who are denied the right to marry, and even the loss to the state economy as a result of not allowing gays to marry. Judge Walker also attempted to have the trial broadcast live to various courthouses in California and then posted on YouTube, though the Supreme Court ruled that live broadcasting must be stayed. The impetus to broadcast the proceedings and the fact that these particular expert witnesses have all been allowed to testify indicate that it is marriage itself, as well as a culture that has not embraced homosexuality, that are on trial.

Most observers, as well as the parties involved, believe that no matter what the decision in the trial, the case will move quickly to a higher court, until it reaches the Supreme Court. The lawyers for the plaintiffs believe that, like Brown v. Board of Education and Loving v. Virginia, Perry v. Schwarzenegger is a watershed civil rights legal case that will usher in a new era of increased rights and greater acceptance for homosexuals in the United States. Theodore Olson observed that he wants the case to be a “teaching opportunity, so people will listen to us talk about the importance of treating people with dignity and respect and equality and affection and love and to stop discriminating against people on the basis of sexual orientation.” As the trial progresses, one group, Equality California, has already begun a massive grass-roots campaign to overturn Proposition 8 through the introduction of another ballot proposition.

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What is it that the gay rights groups are looking for in marriage? Margaret Talbot, in “A Risky Proposal,” her article for the New Yorker, writes: “Most people don’t marry for the benefits, and [...] domestic partnerships are therefore insufficient. The word ‘marriage’ matters because it seems to exalt love, whereas ‘domestic partnership’ does not. The institution of marriage, shorn of its utility for the inheritance of property and the assurance of legitimate children, now seems more important for the ratification it bestows on our relationships, for its sacralization of love.”

Conversely, what are the Proponents of Proposition 8 defending? The lawyer representing the State of California in Perry v. Schwarzenegger, Charles Cooper, was Theodore Olson’s successor as assistant attorney general. Cooper has explained the conflict this way: at the heart of the case “are two competing conceptions of the institution of marriage, and of its central purpose. We say that the central and the defining purpose of marriage is to channel naturally procreative sexual activity between men and women into stable, enduring unions for the sake of begetting, nurturing, and raising the next generation. Plaintiffs say that the central and constitutionally mandated purpose of marriage is simply to provide formal government recognition to loving, committed relationships.” Cooper’s summary seems only slightly less impoverished an understanding of marriage than the original language of Proposition 8.

Either marriage was instituted by God, for a divine purpose, or it is a social and cultural institution, man-made and subject to legal definition and defense. Genesis tells us, “God created man in his image; in the divine image he created him; male and female he created them” (Genesis 1:27), thus revealing that male and female, together, constitute an image of God. Marriage, according to a biblical understanding, isn’t a social institution, nor is it the “sacralization” of romantic love, nor is it merely the ideal mechanism for bringing children into the world. Marriage, that mysterious joining of male and female, is an icon of God himself. God was the one who desired that man should have a partner so that he would not be alone, and God created the woman to be this companion: “The Lord God then built up into a woman the rib that he had taken from the man.

When he brought her to the man, the man said: ‘This one, at last, is bone of my bones and flesh of my flesh; This one shall be called “woman,” for out of “her man” this one has been taken.’ That is why a man leaves his father and mother and clings to his wife, and the two of them become one body” (Genesis 2:22-24). Becoming “one body” in marriage restores an original unity that reflects the unity of God. These facts describe, first of all, something of the nature and being of God. They are facts that will not be made truer because of a law or less true because the law is struck down. They cannot dissolve because people forget that they are true. Something indeed dissolves when we forget who we are and who God is; our own integrity is at stake.