the important and the not-so-important, horribly conflated.

Perry v. Schwarzenegger

In human behavior on February 3, 2010 at 7:01 pm

Over at the New Yorker, the meticulous reportage by Margaret Talbot of the Prop 8 trial in San Francisco has accomplished what broadcasting the trial (at the last minute, the appeal by the defense team to prevent its broadcast on YouTube was accepted by the court) could never have done:

The trial represents, if not the start, then the committing step of the Gay Rights Movement’s (and its opponents’) shift in argument from the public to private realm. This is not the end of rallies or voter referendums (hardly)—instead, Perry v. Schwarzenegger can be seen as a (somewhat contradictory) attempt to tear down “marriage as an institution” and reveal marriage as the more personal, messy, undefinable thing it is. How? By giving it a human face (well, two human faces + several more if you count the Perry family’s children)

It is an odd argument to make—that legal definitions of marriage are simultaneously inadequate and arbitrary… and necessary for a group of Americans to have their rights restored. Talbot’s daily filings attest to both an increased suspicion that the courts or the public can define “marriage,” and an attempt to define its benefits and consequences. A sampling (the link for all of Talbot’s posts is above):


“Prodded at one point by [Team Perry] Boies, Blankenhorn [Team Prop 8] said he believed, in fact, that ‘adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.’ [F]or the pro-same-sex marriage side, it would seem to be a contrast worth driving home: a demonstrable advantage for some children (those of gay and lesbian parents who wish to marry) versus a vague and speculative disadvantage for others (the theoretical future children of couples who might choose not to marry because same-sex couples can)”


Boies asked Miller, for instance, if he thought gays and lesbians were underrepresented among elected statewide officials in California. Miller said he couldn’t answer. He wasn’t sure how to calculate a concept like underrepresentation because he wasn’t sure what the numerator and denominator would be—a reasonable, if slightly fussy, point. But Boies wasn’t about to let it go. “Well, sir, take California. You know that no openly gay or lesbian person has ever in the history of the state, been elected to statewide office, correct? Miller replied, “No openly gay person, that’s correct.” Then Boies underlined his point: “Not governor, not lieutenant governor, not attorney general, not senator. Correct, sir?” Miller allowed that it was. “So in that case,” Boies said, “whatever the denominator would be, the numerator would be zero, correct?”


For the Olson and Boies side, the key point was that whatever either woman actually did, what they felt inside was fundamental. In Perry’s case, for instance, she had always felt “a strong attraction and interest in women.” She had always, she testified, “formed really close relationships with women, and I have only ever fallen in love with women. And the happiest I feel is in my relationship with Sandy, and—because I’m in love with her.”


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