Summary: The Supreme Court’s marriage equality ruling in Obergefell v. Hodges has been a great victory for American queerfolk. I was happy for fifteen minutes. Ruth and Naomi or Jonathan and David can now get hitched all across America. Of course, the reaction from cultural conservatives has been predictably sulfurous, while in the queer nation we are rapidly falling into all of those things that tend to steal our victories from us. Like Democrats, we often have difficulty opening the gifts we are given, and we have a long history of winning a war but losing the peace. There will be an awful lot of credit-taking by the Official LGBT Movement, many of whose members will muscle their way to the head of the chow line to bask in glory they did nothing to earn.
Oh, my ears and whiskers!
After waiting for months for the other shoe to drop, the Supreme Court finally announced is holding in Obergefell v. Hodges, 14-556, this morning. For us queerfolk who had been waiting for the other shoe to drop, it’s a moment, and a moment only, for great celebration. I was happy for fifteen minutes.
I will leave for the labors of more astute legal analysts than I any significant analysis of Justice Kennedy’s majority opinion, in which he swung for the fences and hit it out of the park. But I will note that Roberts, C.J., Scalia, Thomas, and Alito, JJ, all dissented separately. Now, four separate dissents tends to undercut the power of the minority’s expression of views, and, moreover, in this case, each of the four dissents comes across less as a principled articulation of an individual jurist’s reservations or concerns about the majority view and more as a petulant statement of anger at a result the Justices in the minority knew going in that they were powerless to avert.
Indeed, only Chief Justice John Roberts’s dissent makes even the slightest effort to come across as a principled document, yet by urging what amounts to “civil disobedience” or “massive resistance” it comes close to tracking some of the more unhinged Republican advance denunciations of the majority opinion. Worse, by comparing the majority opinion to Dred Scott, Roberts impliedly equates the liberty of same-sex couples to exercise the “fundamental right” of marriage with the Peculiar Institution of Chattel Slavery. What an insult to queerfolk everywhere! That somehow my faculty to marry is the equivalent of holding African-Americans in bondage just doesn’t, and will never, compute with me.
Of course, if Roberts’ dissent was subject to its own enormities, the dissents from Scalia, Thomas, and Alito, JJ, came across as little more than foot stamping, fist-clenched arm waving. Scalia’s dissent in particular, while written in his usual pungent style, gave the impression of an epistolary temper tantrum, not a reasoned, carefully crafted dissent.
Yet, for all the sound and the fury from the four Republican Justices on the Irreconcilable Wing of the court, their anger comes across as positively reasonable compared to the almost unhinged screeds coming from the Republican side of the aisle. Predictably, presidential hopefuls of the Elephant persuasion have been carrying on, among other things, about the importance of a constitutional amendment to keep queerfolk from marrying one another, or about how Obergefell represents the death of Christian civilization. Not only are there emanations predictable, but they are, as usual, calculated to make Republicans look cartoonishly evil on this issue. Indeed, given the official reaction of the Republican Party and its fellow travelers, one may again ask why on earth any queer person would ever be a Republican?
Even so, Republicans know, far better than the Democrats, how to create and prosecute a culture war. Already, Republicans are claiming that Obergefell is this generation’s Roe v. Wade, as if the idea that Ruth and Naomi or Jonathan and David tying the knot was tantamount to abortion. The conflation of the so-called pro-life movement with the anti-LGBT movement is predictable from a political standpoint, but still defies logic. If, in the rhetoric of the so-called pro-life movement, “abortion stills a beating heart,” then how can it possibly be equivalent to a marriage in which “two hearts beat as one”?
Still, cultural conservatives will deploy every forensically impoverished device they can in the service of a new and orders of magnitude more bitter culture war. Perhaps one upside (beyond the enormous upside of nationwide marriage equality) to the reaction from the cultural right will be the cultural right will have no option but to stop trying to lie to us that they are simply “concerned” about “redefining” marriage, and finally admit to us that is not our marriages they hate; it’s us they hate, with the white heat of a nova. It’s us they hate and want to see dead.
Yet even if the cultural right would like to compass are vanishing under color of whatever scriptural verse they cherry pick out of Leviticus, we queerfolk will still become foolish and complacent as a result of this decision. Even though “substantial additional work,” Bush v. Gore (2000) 531 U.S. 98 at 110, remains to be done before we can even begin to think of ourselves as first-class citizens, we will be largely content over this pride weekend to prance about in our Speedos, drink our pastel cocktails, ogle one another, and generally dance on the slopes of a volcano about to erupt.
I’m reminded of the scene from the movie Midway in which Henry Fonda, as Adm. Chester Nimitz, is responding to the news that three of four Japanese carriers were burning or had been sunk. “I’d call that a great victory,” said Hal Holbrook as Cmdr. Joe Rochefort. “Trouble is, Joe,” Fonda as Nimitz replied, “I want that fourth carrier.” Will we be smart enough to pursue that metaphorical fourth carrier? I don’t think we will.
I don’t think we will be smart enough to pursue that metaphorical fourth carrier because the mavens, movers, and shakers of our so-called Movement will soon fall to fighting over who the victory belongs to. They’ll soon fall to fighting over who is entitled to take possession of the kudos, and over who can be written out of the history. Now should be a time for careful, considerate strategizing about next steps and lessons learned.
However, in the words of sometime Italian Foreign Minister Galeazzo Ciano, “victory knows a thousand fathers.” And each of those thousand wannabe parents will be more busy fighting to have a paternity test done that on wondering what to do as our enemies gather and plan to compass our doom. For we always seem to have these arguments when we win a fight: whose baby is victory? But if we lose something, defeat, as Galeazzo Ciano warned “is an orphan.” And so, while we wait for the results of the paternity tests on our victory, that metaphorical fourth carrier is still out there and it can still do wicked damage.
My doubts as to our ability to get it together in the wake of a great victory are not simply the opinionating of a grouchy, middle-aged contrarian. They are the doubts of somebody who has been written out of the history. They are the doubts of the attorney who took on one of the first marriage cases in California, back in 1993, when marriage wasn’t a mainstream issue. Back then, the penalty for not getting in lockstep with whatever issue was considered mainstream was to be shunned and ostracized, without limitation of time. Both my clients and I bore many slings and arrows from the Official Movement.
So, today, the Official Movement, and the people who make it up, the operators, the people-on-the-make, the checkbook activists, the gender warriors, the PC enforcers, the come-lately-to-the-party types, the chow line crashers, and — let’s shame the devil and tell the truth — the star fuckers, will celebrate. People will step up to the podia to claim a piece of a victory they had no share in making.
People in the Official Movement will engage in an orgy of self-congratulation, some rhetoric will be dished out to a couple of hundred people, and then, as the sun moves behind Mount San Jacinto, the crowd will disperse to the local homosexual bars, and in 48 hours the euphoria will be gone, and the community will be back to its usual bickering, gossiping, and backbiting.
Bitter, party of one, my table has been ready for a generation, because I see what can happen when an Official Movement muscles its way to the head of the chow line. So, while I was happy for 15 minutes, it’s now back to normal, and I see nothing to celebrate by foregathering in 115° weather to be preached at by people who haven’t got the slightest clue about how our fight developed and how it was won.
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