Wednesday, December 02, 2009

Will a federal fight over Proposition 8 put all gay equality at risk?


The December 2009 issue of The American Prospect has an important piece by Gabriel Arana, “Gay on Trial: why more than marriage is at stake on the federal legal challenge to Prop. 8”. The cover of the magazine is even more alarmist: “The Gay Gamble.” It’s worthy of note that the magazine calls itself “liberal intelligence” (maybe to go against “The Nation” or “Mother Jones”). The link for the Arana article is here.

Arana analyzes what is likely to happen in the federal challenge, especially if it goes to the Supreme Court. It’s likely to weigh heavily on traditional arguments about immutability, suspect class, and equal protection. “Suspect class” is particularly nettlesome because its use in constitutional law has become a bit unprincipled (at least in the eyes of conservatives). Sometimes religion counts and sometimes it doesn’t. Using it for sexual orientation is a more complicated intellectual challenge than for race. We know that from our experience with the military. But if “we” fail, then other issues could be affected, like rolling back employment discrimination, or overturning “don’t ask don’t tell”, maybe even issues with civilian security clearances.

I think there is a whole other area to argue, that we got through with Lawrence v. Texas, that of fundamental rights, self-expression, and still (even if a guarded notion in the Internet age) privacy. That get back to the substance of my “notorious” “do ask do tell” 1997 book.

There’s a whole “acute angle” on this that I could introduce by mentioning a script line in a recent NBC “Days of our Lives” episode, where likeable straight teenager Will (Dylan Patton) mentions his duty to protect “his little sister.” It caught my ear, even though I was busy on the computer. Why is he responsible for someone who is not his own child? It wasn’t his own voluntary act (intercourse) that created the responsibility; it was that of his parents. (In the soap, I know, it gets complicated, with Sami and so on, but back to the argument.) But think it through more. Some day, society assumes, Will should get married and have kids himself. Among his own kids, he will have the social power to expect a similar kind of loyalty and protective responsibility. (Dr. Phil has barely touched on this in his show.) But the point is, the responsibility for others (kids, and now especially elderly parents or other disabled family members) is partly a communal one, originally created by parents but passed on to others. This sounds like Hillary Clinton’s “It Takes a Village” thing.

You see how this mediates the “equality” argument? Married people get to create responsibilities that can be passed on to unmarried people. The lack of equality doesn’t just come from spousal benefits, although that matter (see my Nov. 23 posting on estates). Single people are infringed upon, as almost a direct logical consequence of special privileges for the married. No wonder libertarians want to reduce marriage to a private contract, with no special benefits (like the famous 1996 article by Gays and Lesbians for Individual Liberty, “Licensed Expired”).

Here we get into existentialism, religion, metaphysics, and Rick Warren. Yes, sometimes (within the family, or in the workplace), people without kids are expected to “sacrifice” for those who have them, and there is a rough parallel to marriage. (This is the moral mindset determined that nobody "gets out of things.") This fits the 1990s arguments from Jonathan Rauch, that sees marital privilege as a necessary thing, and that gays should partake in both the privileges and responsibilities that go with it, and get away from so much emphasis on fantasy and “Mr. Right” thinking (and perhaps lookism, as in one particular email I got in 1999 from someone directly impacted by DADT – yes, I still remember it’s tone – and I do apologize for something I had said at the DC Pride celebration that year.)

There’s something about giving (Warren style): it’s more than sacrifice, which is sometimes a perceived infringement which in reality is more like repaying a hidden debt or working off some negative personal karma.

Rauch argues in the right spirit on these matters: equality means equal responsibility as well as equal rights. Think how this could apply to overturning “don’t ask don’t tell”.

Wikipedia attribution link for picture of California capitol in Sacramento

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