So, just to keep people apprised, I wanted to lay out the arguments of the supporters of Prop 8 in their motion for a stay, plus provide some of my own commentary.
They say Walker ignored the following “facts”:
(A) Walker stated that opposite-sex marriage was “never part of the historical core of the institution of marriage,” when “clearly” it is. Later, they will lay out a number of quotes defining marriage as between a “man and a woman” from the late 1700s to about the 1980s. They seem to miss Walker’s main argument, though, which is that historically, marriage has been about “gender dynamics” and that the “core” of marriage is about love. In other words, the supporters see “man and woman” in the quotes they use, which point to “gender,” but ignore the gender dynamics of earlier eras.
(B) Walker states that religious views form the only basis from which to exclude same-sex couples from marriage. The supporters of Prop 8 here bring back the tired argument about the “biological fact of reproduction between a man and a woman.” Here, I wonder if they even read Walker’s opinion: The state has never required reproduction from its couples; this would be cruel. Later, the supporters say the state never engaged in an “Orwellian” you-must-reproduce situation because people have babies anyway. This is true, but I’m not sure how this helps their argument. A “man” and a “woman” in “marriage” are not the prerequisites to make a baby. Sperm and eggs make babies. Where do the supporters think the children in same-sex parented families came from?
(C) Walker stated that being against same-sex marriage does not stand up to “rational” review, but the “truth of the matter” is that Californians simply don’t want to “experiment” with the institution because of “uncertainty” about the social implications. I’m not sure what to say here. Given the above, this seems to be a fear of present queer kinship, as opposed to uncertainty about a shared future. Walker is talking about “rights, right now,” whereas the supporters are talking about a nebulous future.
(D) Walker puts his foot down about same-sex parenting being fine, stating that the science is there enough to render “irrational” those against it. The supporters of Prop 8 hold that the question isn’t resolved. I’m not sure what exactly is left to prove.
The following arguments are then made, using judicial precedent:
(1) Proponents are allowed to repeal to protect an initiative. Okay, this makes sense.
(2) Supreme Court precedent “mandates” that Walker be overturned. Here they lay out:
- Baker v Nelson in which the Supreme Court dismissed a same-sex marriage case because of “want of substantial federal question.” This was in 1972, though, so this seems kinda silly.
- Adams v Howerton in 1982, in which the word “spouse” was upheld as an opposite-sex partner.
(3) There is no “fundamental” right to same-sex marriage. This section is kinda interesting, because here they bring in history and social science, but they only use surface quotes. They quote anthropologist Claude Levi-Strauss who wrote in 1985: “the familybased on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise childrenappears to be a practically universal phenomenon, present in every type of society.” They fail to mention, however, that same-sex attraction is also present in every type of society.
They bring in Bertrand Russell: “But for children, there would be no need for any institution connected with sex. . . . [for] it is through children alone that sexual relations become of importance to society.” Okay, so there’s children in the picture. See (B) above.
They quote Noah Webster: “marriage was instituted for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children.” Okay, but any historian of marriage would unpack this. The first thing that comes to mind was women were considered property and were required to stay in a space of “domestic felicity.” Women viewed themselves in family terms, rather than “womanly” terms, but one of the first feminist movements in this country were women as proponents of stable marriages to prevent promiscuity of their husbands (who had the power to be promiscuous and the woman could do nothing to protect herself from disease). In turn, this makes it the “woman’s problem” to maintain a stable marriage. There is a correlation between women gaining power in society and having more control over their sex lives, and not restricting their sexualities to “procreation and desire within marriage.” In sum, Webster’s quote is laden with gender dynamics that are historical in nature, but the supporters use the quote to speak to some kind of marital essence.
(4) Prop 8 is not subject to equal protection scrutiny, the proponents say. The argument here spirals into sentences like: “This distinction (between opposite and same-sex couples in terms of procreation) is not only relevant to interests the State has authority to implement, but, as demonstrated above, forms the very foundation of what marriage has always, and everywhere, been understood to be.” Always and everywhere?
Then they get into, importantly, the lack of an immutability of sexual orientation, unlike protected classes of sex and race. This is perhaps the crux of the matter. What they don’t seem to understand is that “sex” and “race” are essentialized in the American judicial system because of how groups of people who have been “racialized” and “sexed” have historically been treated. This is not the same thing as saying race and sex are in and of themselves essential. Race as essential falls apart when it comes to multi-raciality. Sex as essential falls apart when it comes to a question of “so, the essential woman is what exactly?” Walker’s understanding of “sexual orientation” is a group of people who have been classified and treated differently based on “sex”: male-male, female-female.
They also talk about Lawrence v Texas as protecting privacy, but not recognizing publicly same-sex relationships as marriage. Okay, good job. That’s why there’s this court case. =p
(5) The proponents then talk about same-sex marriage as part of a “deinstitutionalization” of marriage (in terms of how folks might behave within marriage), and that this is flatly against Walker’s stance that “same-sex marriage doesn’t not affect the institution of marriage.” This is merely a question of semantics. Whenever something “different” is normalized, it will be both the “same as something” and “different than something.”
(6) This is a state issue, not a federal issue; thus, Walker’s appeal to the essence of marriage for “everyone” is wrongheaded. I’m not sure how to address this. The proponents also heavily speak to a “timelessness” of marriage, so they seem to be hypocrites here.
(7) Walker unfairly categorized 7 million Californians as prejudiced; “protecting children” is not sinister. This is related to the point above. Either “heterosexism” exists on this issue or it doesn’t.
(8) They say that “irreparable harm” will come to the same-sex couples who marry if the stay is not upheld and whose marriages will be annulled if Walker’s decision is overturned. Others engaged in administrative concerns, such as employers and the state, will also be burdened if Walker is overturned and the interim marriages are annulled. Thus, the stay should be upheld to offset this upset feeling and administrative burden. This section is just ugly to me. Do they really think that same-sex couples who want to marry are interested in “not marrying” for another two years or however long it takes for this to move through the courts? They argue against same-sex marriage and parenting for 80 pages and then all of a sudden are concerned about “harm” done to same-sex couples?