Summary: There has been a certain tendency among ideological purists in the insurgent campaign of Vermont Senator Bernard Sanders to attack Hillary Rodham Clinton for the apparent recency of her support for marriage equality. Apparently, these ideological purists are disconnected from the Scriptures which form so important a part of the Western Canon, and which, in the Ninth Chapter of the Acts of the Apostles, recount the story of St. Paul’s conversion on the road to Damascus.
Yet, none of us can claim to be Simon pure on marriage equality. For most of us, coming around to the idea that Ruth and Naomi or Jonathan and David should be able to tie the knot and have their unions recognized was a fairly heavy lift. It required of all of us, straight or queer, a reevaluation of a lot of heretofore unexamined verities. A great many people in our society have still not come round to the idea that Ruth should be allowed to marry Naomi or the Jonathan and David can be husbands together. To attack Hillary Rodham Clinton for not coming around “soon enough,” is ridiculous, privileged hypocrisy. To attack her because her husband signed the so-called Defense of Marriage Act is not only privileged, it’s just out and out sexist.
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A not insignificant number of Bernard Sanders purists, including many privileged young homosexuals who are in a position, thanks to the struggles of their elders and betters, to take their protected status for granted, have taken up the cudgels against Hillary Rodham Clinton attacking her for being “late to the ball”, as it were, on marriage equality. Of course, these are the same purists who attacked President Obama because they didn’t like his timetable for evolution on the issue of marriage equality, either.
I think I’m in a position to speak with some credibility, even authority, on this issue. I was one of the first attorneys in California to take on a marriage case. By that, I don’t mean an ordinary straight divorce, I mean that I was one of the first attorneys in California, perhaps the very first, to challenge the validity of California’s gender-specific marriage law.
Early in 1993, I was approached by two young men who had been rebuffed in their attempt to procure a marriage license from the Los Angeles County registrar-recorder. We discussed the matter, and we decided to challenge the ban. We took a flyer. Our philosophy in so doing was simple. We figured that either one of two things would happen: either the courts would be so startled by our writ petition that they would deny it out of hand, with a one sentence per curiam decision reading simply “the petition is denied.” or, if the court considered our petition sufficiently meritorious, we might be able to sneak through a major breakthrough in the cause a marriage equality.
We were inspired by the recent Hawai’i case of Baehr v. Lewin (1993) 74 Haw. 530, in which the Hawai’i Supreme Court had required the state to demonstrate a compelling government interest for denying the liberty of marital contract to same-sex couples. We took a careful look at the opinion, and we also analyzed the likelihood that the courts might attempt to use our petition to come down with a retrograde, homophobic opinion such as that in Bowers v. Hardwick, (1986) 478 U.S. 186, which had upheld the authority of states to criminalize same-sex intimacy. Knowing as I did the personnel who would probably make up the appellate panel reviewing our petition, I believed the risk was justified by the potential reward.
So, we went ahead and filed our petition. We were expecting a hostile, at best indifferent, reaction from the straight community. What took us rather by surprise was the enormous hostility we encountered from the “official” Gay and Lesbian Movement. My clients and I were shunned by the Official Movement, and essentially cast out into the wilderness. While the Los Angeles Times ran a fairly lengthy and even sympathetic article, we received next to no attention from the queer press. The “Official Lawyers” of the “Official” Homosexual Movement “ordered” me to cease and desist.
I could see two reasons for the hostile reaction of the so-called “Official” Movement. First, all of the “Official Homosexuals” were wrapped up in the battle over the right of queer folk to be cannon fodder, for the right to kill and to be killed while wearing our country’s uniform. It’s curiously ironic, isn’t it, that in America, your first-class citizenship should be a function of your willingness to kill or be killed while wearing the national uniform. Because apparently, the right to be cannon fodder was viewed as being substantially more important than our right to form legally recognized families.
The second reason that I encountered such hostility from the “Official” Movement was simply that the “Official” Movement is very territorial. They didn’t want an unknown like me poaching in territory of which they proposed to take exclusive possession when the moment was right. My clients and I, to the view of the “Official” Movement, were unwelcome, unwanted interlopers. And we were treated as such. We were publicly scoffed at by gay and lesbian Center director Lorri Jean, and by other “Official” homosexuals who took their cue from her; we were attacked, ignored, and written out of the Offical, Canonical, History. Had we been successful, I expect we would still have been revised right out of the Official History.
Of course, it must be conceded that the climate for marriage in 1993 was considerably different than it is today. A great many Americans, both queer and straight, were uncertain about whether the queer nation, let alone American society as a whole, was prepared to assimilate the ramifications of allowing Ruth and Naomi or Jonathan and David to tie the nuptial knot. Indeed, if you had asked me, when I graduated from law school in 1989, whether I supported marriage equality, my own answer would probably have been a somewhat equivocal “not really.”
My “evolution” on the subject was precipitated not only by my responsibility to my clients, which required that I be able to zealously represent their interests, but also by the fact that a cousin of mine and his same-sex partner (now husband) had adopted a daughter. At the time, second parent adoptions were not an option for them; only one of the two men could legally be the girl’s father, though both men were parents to this girl (now an astonishingly self-possessed young woman) in every way that mattered. But if something untoward were to happen to the girl’s legal father, his partner, also the girl’s father in every way that matters, would have no rights with respect to the child that the law would be compelled to respect or even acknowledge. I wanted to change that.
Those two factors contributed in large part to my own “road to Damascus” moment. I became an advocate for same gender marriage. I remember a conversation I had during this time with a professional colleague who cautioned me that our national conversation on marriage was only beginning. It would be, he suggested, at least ten years before we would see any progress. His estimate turned out to be prescient. Though Vermont opened the door for civil unions in Baker v. State, 744 A.2d 864 (Vt. 1999), it would not be until 2003 that Massachusetts would open the way to full marriage equality with the Supreme Judicial Court’s decision in Goodridge v. Dept. of Public Health (2003) 440 Mass. 309, 798 N.E.2d 941. My colleague’s ten-year prediction had proven eerily correct.
Of course there was backlash and even more there was what Lyndon Johnson famously called frontlash, as states without marriage equality sought to preempt it or prohibit it from taking root within their borders. Indeed, the whole issue of marriage formed a large part of the George W. Bush administration’s pandering approach to social conservatives during his 2004 campaign, though, privately, even the Bush administration gave intimations that it might be prepared to regard civil unions as an acceptable “Plan B” option.
For queerfolk, evolution on marriage came fairly quickly and fairly uniformly. Though certain so-called lesbian separatists and followers of homonormativity opposed marriage because it represented a queer co-optation of a straight institution, the vast majority of America’s queerfolk came round to marriage equality fairly quickly and fairly comprehensively.
But for our straight neighbors, the issue was a little bit more complicated. To bring our straight neighbors around on marriage, we’ve had to make use of the social construct known as “proximity empathy.” Now proximity empathy is based on the idea that to know someone helps break down barriers to acceptance. It is the idea underlying National Coming Out Day; it’s a lot harder to deny the civil rights, the personhood, or the humanity of a queer person if you know one. When your child, your neighbor, your kin, your fellow parishioner, your coworker, your colleague, your you-name-it, comes out to you, it forces you to reassess your prejudices. The example that readily occurs in any discussion of proximity empathy is that of Ohio Republican Senator Rob Portman, whose son Will came out as gay while an undergraduate at Yale.
Of course, appeals to proximity empathy don’t sit well with the purity police, and so, we have an awful lot of Bernie Sanders supporters taking up the cudgels against Hillary Clinton because they don’t like the fact that she --and the President-– both very publicly “evolved” on the issue of marriage in rather the same manner as Saul of Tarsus became Paul the God-intoxicated emissary of the Jesus Movement in the Ninth Chapter of the Acts of the Apostles. To purists, particularly the Sanders purists, anything less than permanent, early, unequivocal support is unacceptable. This, notwithstanding Senator Sanders’s own equivocations on the issue of marriage equality.
Still, we know the the limitations of the purist mind. We know that to purists, any indication of flexibility, any so-called evolution, is ideologically forbidden. And so we see Sanders trolls posting memes attacking Hillary Clinton for not having been “there” on marriage equality early enough. Add to that the Sanders supporters’ attacks on Hillary Clinton for the so-called Defense of Marriage Act, and it is easy to see the sexism and male privilege underlying so many of those attacks.
Many of these attacks come from millennial homosexuals who, in California at least, have been able to take for granted their faculty for participating openly in the life of the body politic. These millennial homosexuals have no concept of the time when the mere expression of physical intimacy with a person of one’s own sex could spell ruin.
They have no recollection of the time when California law provided no workplace protection for queerfolk. They don’t remember the demonstrations that took place when Republican Governor Pete Wilson vetoed California’s first employment nondiscrimination bill for LGBT people. They have no memory of that time in our relatively recent history when you could be denied housing for being queer, or when Megan’s law was being used to harass elderly gay men with ancient criminal records for having held their boyfriend’s hand during the 1940s.
Most of these millennial homosexuals, born in the late 1980s or 1990s, also have no memory of the AIDS epidemic that scarred the lives of a generation of queerfolk. To them, being a twentysomething gay man now has absolutely no resemblance to life if you happened to be a gay man born in the late 50s or early 60s. For those of us who were born in that timeframe, our twenties should have been a time when the world was our oyster, when we had phenomenal sex lives, when we were beautiful, the horizon was limitless, and the candy store was open.
Instead, we who were in our late teens and early 20s in the early 1980s entered adulthood to a reality of friends and lovers getting sick and dying. We attended so many funerals that we could recite from memory the Burial Office. A time that should have been for us a happy time full of promise was instead a Ragnarok, a gray and cheerless time when Fenrir the Wolf had devoured the sun and Valhalla had fallen. All we could say as the crisis began to moderate in the mid-1990s was what which the Abbé Sieyes had said when asked what he had done during the Terror: “j’ai survécu,” I survived.
Today’s millennial homosexuals have been able to do much more than merely survive. In Palm Springs, our millennial homosexuals enjoy a rather privileged existence. It’s hardly surprising that Palm Springs should be the gay playground of choice for millennial homosexuals from the Bay Area and West Hollywood. Yet they have the privilege of not remembering. It’s not a matter of having forgotten; it’s just that they weren’t born then, and they thus have absolutely no basis for comparison.
But we who are closer in age to Hillary Clinton then we are to the millennial homosexuals of Palm Springs understand what it is to evolve. We understand what it is to have buried our friends while reciting from constantly refreshed memory the Burial Office. And perhaps, being closer in age to Hillary Clinton, having seen the bullshit to which she has been subjected, and having put up with our own bullshit, we are a little bit older, a little bit sadder, and a little bit wiser.
And perhaps, just perhaps, as we late 50s and early 60s babies teeter on the brink of old farthood, we’ve learned that Simon purity is not sustainable, that forgiveness is a must, that evolution can happen, that the Ninth Chapter of the Acts of the Apostles (and the Pauline conversion narrative set forth therein) contains truths we would do well to recall, and that finally, an imperfect friend is a hell of a lot better to have in your corner than a deadly enemy.
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The views contained herein are those of the author, and are not intended as, and should not be construed as, legal advice. Persons seeking legal advice should consult a licensed practitioner, one of whom of whom this incipient old fart happens to be.
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