Annals Of The Law: Women And Children Can Be Careless, But Not Men

People who know me are aware that I often rise at a grisly hour of the morning to row. There are a variety of advantages to this, including being too confused for lack of sleep to have that debate about whether I should work out or keep writing. The best one, however, is that I hear the first half hour of National Public Radio's Morning Edition on the way to the boat house. I have six miles of a workout in a single scull to think uninterrupted about whatever I have heard, and I can listen to the same stories again on the way back and decide whether any of them are worthy of a blog post.

Which is how I decided to write about yesterday's closing arguments in the Rod Blagojevich trial. Blagojevich, you may recall, is the former Governor of Illinois. He is being tried on multiple counts of corruption, including attempts to sell the Senate seat vacated by Barack Obama. Defense counsel Sam Adams, Jr. made the argument we might expect: that the government's case is manufactured and that prosecutors have twisted circumstantial evidence to make the defendant appear to be corrupt.

Blagojevich is also, according to his attorney, a compulsive talker, and says all kinds of things that he either doesn't mean or that are open to interpretation by others. ("Never tell anyone outside the family what you're thinking again.")

But what explains all the evidence, and the witnesses who testified for the prosecution? They misunderstood "negotiation" for "extortion," that's all, and maybe Blogojevich should have said less and conveyed more clearly what he actually meant. Like, "I'm gonna make him an offer he can't refuse." It appears that the logic of the defense's position is that the former governor is "insecure" and not "the sharpest knife in the drawer."

Wondering about the corny Mafia theme? I haven't told you yet about Adams' sure-fire offensive ethnic humor strategy (law students, listen up):

At one point, the bombastic attorney launched into a story about his Italian grandmother, who shoots a mule dead after it stumbled three times. "Thatsa one! Thatsa two! Thatsa three!" Adam yelled, mimicking the accent.

When her husband called her stupid for shooting the mule, she warned him: "Thatsa one!"

Is this -- or is this not -- a great Chicago story? What NPR doesn't mention is that this little parable actually illustrates political bullying at its best.

And now, as we settle in to the last month of summer, here's a little more good advice from Don Radicale:

Sunday Radical Roundup: (Don't) Ask, (Don't) Tell Memorial Day Edition

Congressional Dems Reach Down And Locate Their 'Nads: Will long-standing legal discrimination against gay and lesbian service people be struck down this summer? We at Tenured Radical certainly hope so. Although we are more than ambivalent about armed conflict, we are not in the least ambivalent about the right to serve in the military without discrimination because of race, gender or sexual orientation. As Janet Halley argued years ago in Don't: A Reader's Guide To The Military's Anti-Gay Policy (Duke, 1999), this has not been an overwhelmingly popular item for queer activism. The fight for marriage -- by which overwhelmingly white, well-to-do queers confer rights and wealth on each other just like straight people -- has been far more popular than the right to military service, which is often the path to citizenship, education and income for people who are working-class, immigrant and of color. And of course, many of these people who want to work hard and earn a decent living via the military are queer.

The marriage campaign has also been able to capitalize on lots of cute kids saying on camera how bad they feel because their moms can't marry like other kids' parents, possibly the yuckiest but most effective tactic among the bourgeois queers who have made this a top priority and kicked other more substantial economic and political issues aside. Indeed, queers in the military pose quite the problem for activists, because dollars to doughnuts, gay and lesbian soldiers are conservative queers. Maybe, if gay and lesbian activists talked to military people, the movement would even have to stop acting as though Andrew Sullivan is the only conservative queer around.

There are many things that have distressed me about DADT, aside from the fact that every generation of my family has served honorably (two cousins of the Radical as recently as Gulf I), acquiring careers and benefits as a result of their service that they would not otherwise have had access to. Ergo, I object in a very personal way to seeing this form of national service and citizenship barred to people who find it meaningful and useful. But what has distressed me most is that, as the argument has dissipated that queers are unsuited by "nature" for national security roles of all kinds, the argument against queer military service has boiled down to the most despicable dynamic that discrimination relies on: that it is the object of discrimination who causes the problem, not those who discriminate or tolerate discrimination. Thus, the gay man or lesbian becomes the thing to be eliminated if good order is to be maintained, not the intolerance and prejudice of those around hir. This is the implication of this story (in case you needed clarity on this issue) in which queer soldiers raise concerns about whether they will be harmed by other soldiers if DADT is repealed. One noncom explains that it would be fine with him if men and women under his command were queer, as long as he didn't know about and -- what? Get grossed out?

This is why numerous GLBT students are being told by public school districts to stay home and complete their high school diplomas via distance learning: because if a queer kid is being bullied and tortured in school, the best thing to do is remove the kid, right? No matter that it is the school principal's job to ensure that no child is bullied or harmed -- just as it is the officer and NCO's job to ensure good order in any given unit.

Any officer or NCO who cannot lead when DADT is repealed should be relieved of command. It's that simple. S/he should be relieved of command because s/he cannot obey orders, and because s/he cannot lead others to obey orders effectively either. And you know what? I think this Radical may have greater faith in the officer and non-commissioned officer corps than the politicians do. Ours is the best trained military in the world, and our military personnel will do their job.

The United States military will have to undo generations of official homophobia to make this work, and they have no one to blame but themselves. I believe they can; I believe that the officer corps understands that it is their job to lead; and that they will make it happen. While there is no lack of racial discrimination in the military, there may well be less than there is in the society at large, since the principles of unit cohesion mandate resisting social forces and beliefs that undermine it (not the reverse, as conservative ideologues would have it.) But as the story I linked above points out, it is the ways in which the repeal of DADT opens the door to full citizenship and zero-tolerance for all kinds of discrimination against queers that has been the endgame all along. Much more than marriage, military recognition of gay rights will unravel structural discrimination against queers because military employment and production dominates our society -- particularly in those places, such as the south and California, where anti-gay initiatives have been used so cynically by the Republicans.

Just In Time To Repeal DADT: And by the way? If Zenith students aren't doin' it for themselves, their relatives are. Recent grad Peter Lubershane tells me that his cousin Josh Howard has made a documentary film from David K. Johnson's The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government called -- The Lavender Scare. And happy 85th birthday to gay activist Frank Kameny (pictured above, courtesy of Howard's website) -- you are as sexy as ever, and you outlived J. Edgar Hoover!

Summer History Blogging Fun: Here's a terrific new history blog written by a former Zenith honors student named Molly Rosner. It's called Brooklyn In Love and War. As Rosner describes it, the blog is "about the nation’s history filtered through the well-documented relationship between my grandparents. I never knew Sylvia, but she and my grandfather, Alex, wrote hundreds of letters during the years that Alex was stationed abroad during WWII. Most posts will look at a letter that helps the story of these two people – who are both typical and unique – unfold." After leaving Zenith, Rosner went on to do a master's degree in the oral history program at Columbia University. She's a wonderful and imaginative writer, and you might want to put it on your favorites list. If you are a literary agent, you might want to get in touch with her: the blog would be a terrific platform for a book.

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.