Wednesday, January 13, 2010

And Now, You Will Be Judged By History: Perry v. Schwarzenegger

Last night was my first real evening at home since returning from South Africa: the previous night, when I actually arrived after a three-hour tour of I-95 by Connecticut Limousine, nearly blind from exhaustion and with a raging post-Restoril headache, did not count. As is my usual habit, last night I clicked on to my favorite evening news and found that almost nothing has happened in the United States since I left eight weeks ago.

This wasn't as much of a surprise as discovering this morning that it was Wednesday, and not Thursday, but it was unsettling. I learned on the news that:

It is now very cold (which can be typical at this time of year);

Oil futures are rising (a phenomenon that can follow upon cold weather);

Harry Reid said one of those things about race that has given the Republicans another idea about how to stall until the 2012 election;

The United States is still in a recession;

The "American people" are still angry at the financial industry for the massive bonuses executives intend to pay themselves as a reward for plunging the country into economic chaos;

The financial industry doesn't understand why the "American public" can't accept it that it was "policies originating in Washington" that caused the economic crisis, and that they are actually heroes who need to be persuaded to stay on and clean up the mess "government" made; and

Media "experts" differ sharply on what seems to be an indisputable historical fact -- that the financial industry lobbied successfully for deregulation, which they then happily used to screw us all six ways from Sunday.

If history is really about change over time, I'm not impressed with what has been accomplished in the land of my birth since mid-November. So needless to say, I was pleased to hear from one of my history colleagues that Perry v. Schwarzenegger, the case that aspires to overturn Proposition 8, has gone to trial in San Francisco. No matter what happens, the case will not stop here: the loser will surely appeal to the Supreme Court. We can only hope that occurs after at least one conservative justice leaves the bench to watch pornography full time --er, I mean, devote himself his family.

On their way home from the American Historical Association Annual Meeting in San Diego, colleagues Nancy Cott and George Chauncey stopped off to give expert testimony on behalf of the litigants in Perry. A short account of their work yesterday can be found here.

Both scholars were among the authors of The Historian's Brief submitted in the landmark case Lawrence v. Texas (2003). This was the Supreme Court decision that voided all laws prohibiting sodomy between consenting adults. Yesterday, Chauncey historicized the ways in which the law has persistently demonized queer people, while Cott gave the complex rendition of the history of marriage that one might expect and hope for from her. Perhaps because the right has finally ceded gay people's right to exist outside a prison cell but a smart woman is always annoying, several accounts of yesterday's proceedings suggest that Chauncey's testimony went relatively unchallenged and Cott bore the brunt of the defense's attack.

Fortunately Cott is one of the toughest cookies I know, and I know a lot of tough cookies forged in those early days of what we used to call women's history. Counsel for the defense pushed Cott on whether, if her analysis of marriage as primarily a political and economic institution were correct, there would be no reason not to legalize polygamy as well. She was also repeatedly asked to listen to long, boring passages from her own and other people's scholarship that were designed to introduce inconsistencies in her testimony; and to answer complex historical questions with the words "yes" or "no."

New York Times Bay area blogger Gerry Shih, reporting on yesterday's action, noted that "after Professor Cott had left the stand, defense lawyers lashed out at her performance, calling it a 'disaster' and part of a strategy that backfired on the plaintiffs." Yes, telling the historical truth can really backfire, particularly in the debate over gay marriage, where politics are far more important than the truth. Anti-gay marriage initiatives timed to coordinate with national elections were part of the dirty tricks package originally brought to the table by Bush strategist Lee Atwater in the rollicking 1980s. The point of such initiatives was, and still is, not to perfect society but to win elections by manipulating the electorate with lies such as: gay marriage will destroy your family; voting day has been changed to Wednesday; John McCain has a black love-child; Barack Obama wants you to vote for Prop 8/is a practicing Muslim/a terrorist/isn't a citizen; sex education curricula in Illinois instruct first graders on how to sodomize each other.

But back to the court room, where the truth (theoretically) prevails. What were Cott's errors, if indeed she made any? Shih writes that "Andrew Pugno, one member of the defense team, said the historian had made a series of tactical mistakes, including her statement that “the consequences of same sex marriage are impossible to know.” Interrupting the true-false choices momentarily, Thompson also asked Cott "if there exists 'a social institution as important to children as marriage.' She paused, then replied: 'I think families are important to children.'" In right-wing speak, this would be an error because families are the exact opposite of gay.

Continuing, "Mr. Thompson then asked: 'the biological connection is irrelevant?' Yes, Professor Cott answered." Wait! We know from the abortion debate that the most sacred and natural bonds are biological, right?

Well, except that biology's only relevance to adoption and marriage, two major ways in which the law constructs natural "family," is its explicit prohibition. You can't adopt someone who is already your biological child and you can't marry a person within two degrees of biological relation in most states: thus, the lack of a biological relation is foundational to the construction of "natural" families. So it is relevant, but not in the way Thompson means it. I understand that it is the job of each legal team to discredit witnesses everywhere they can, but this may be shaping up to be another Scopes v. Tennessee (1926), in which the incoherence of the anti-gay marriage position may become more obvious to a larger audience, particularly those people who think that the chief concern at stake in marriage is the happiness and security of children, not adults. It is, I am afraid, what most people do think, which is a sad commentary on the state of modern marriage.

The way Cott was treated on the witness stand also reminds one that, to paraphrase Dickens' Mr. Bumble, the law is an ass, which is why many of us are not particularly interested in having it sanction and regulate our partnerships. But to close with a final reflection on the practical uses of history: challenges to the nuances of our intellectual practice by attorneys cannot help but raise unpleasant memories of EEOC v. Sears (1986). People of my age will recall that expert, different, but not necessarily opposite, testimony by two feminist colleagues became divisive within the profession when Sears prevailed over women workers. In retrospect, Sears was also an early indicator of where the fault lines in feminism would be being exploited by conservatives, in the Reagan administration and subsequently.

Fortunately, although queer history and the history of sexuality are not well supported by many departments, and some colleagues are openly hostile to it, there does not seem to be a cadre of prestigious historians out there who can be called to dispute Cott and Chauncey. And that may also signal an important shift towards a more broadly accepted view of marriage itself as a secular institution that is best comprehended in through secular forms of thought. We'll see.

A portion of this post has been cross posted at Cliopatria.


Comrade PhysioProf said...

Fascinating post, TR! I wasn't aware until now that historians have been called as expert witnesses in these kinds of cases.

Anonymous said...

Thanks for your insights, radical. I especially like your closing argument. May the use of expert historical testimony in these cases be recognized WITHIN the field of history as evidence that the history of sexuality is actually critically needed so that we can make better sense of contemporary issues.

Bess said...

I am really glad to see these historians contributing to the case, but as the defense seems to show, the arguments are a bit apples and oranges. It's hard to convince a constituency deeply and emotionally attached to a very specific definition of marriage that their own views are historically contingent. But it is the truth, and I'm glad it's out there for someone at least.

Anonymous said...

great analysis. Welcome back. Good thing Cott's tough. Sounds brutal.