One of my recent hobbies or fascinations in current events has been following the case of Perry v. Schwarzenegger, currently before a California Distinct Court. The case, as many of you will know, involves a challenge to California’s Proposition 8, a ballot initiative which resulted in an amendment to the California State Constitution which prohibited same-sex marriage. The ban came after a May 2008 decision by the state Supreme Court which affirmed that statutes banning same-sex unions were unconstitutional. The case is fascinating for several reasons, not the least of which is the fact that the attorneys arguing on behalf of the plaintiffs, two same-sex couples, are Ted Olson and David Boies, who were formerly adversaries in the 2000 Supreme Court case Bush v. Gore, which decided the presidential election of that year. Boies, along with co-counsel Ted Boutros, can be seen outlining their case in the video below:
Boies and Olson no doubt have a very compelling case given legal precedent and the implications that Proposition 8 posed for the Fourteenth Amendment in the state of California. They’ve also done a thorough job of addressing and debunking the claims of the defense. It seems inevitable that this case will soon enough find itself before the United States Supreme Court, and while it’s a bit of a mug’s game predicting how the Supreme Court will rule, especially when the judiciary is in such a period of transition as it currently is, Olson and Boies will certainly make a powerful case.
Rather than the legal and constitutional aspects of the case, I hope in this piece to examine the broader, more normative case for rights based on sexual orientation. The issues at hand in cases like Perry are not merely questions of equality before and under the law, but also one of respecting choice as a means to self-actualization and affirmation. This type of respect, I believe, is the real underpinning of the Fourteenth Amendment and has been at the center of several judicial decisions relating to sexual autonomy, primarily those of Planned Parenthood v. Casey (1992) and Lawrence v. Texas (2003).
In these cases, the Supreme Court was particularly deferential to the notion, notably elucidated by Canadian legal scholar Leslie Green, that “Choice is celebrated, not for its own sake, but for its capacity to attend to the needs of the intimate self. Respect for people’s choices thus expresses respect for the lives they have made (p.387).” This is a principle that has been affirmed time and time again by the US Supreme Court and indicates that, as previously stated, sexual orientation and the choices that result from it, including choices pertaining to marriage, are immensely important to what Americans call “the pursuit of happiness.”
This manner of examining the very contentious issue of LGBT rights has come to the surface again in Martha Nussbaum’s latest book entitled, “From Disgust to Humanity: Sexual Orientation and Constitutional Law.” Nussbaum makes an argument similar to the one put forward by Green, arguing that the choices that adults make with regard to sexuality, partnership, love, etc. are vital to self-actualization and demand deference as a result of that vitality. This is put more precisely in Maya Schenwar’s review of the book at Truthout. Schenwar writes,
Sex, Nussbaum argues, is a matter of conscience. Sexual choices are manifestations of our individual desires to find meaning and joy – and as long as they’re self-regarding and not harming anyone who doesn’t want to be harmed, they deserve a wide range of freedoms (no matter how “satanic” they might be).
Leslie Green’s piece “Sexuality, Modernity, and Authenticity” takes a similar line in asserting the importance of sexual choice in a modern liberaldemocracy, an institution which itself places emphasis on self-actualization and liberty. Green’s case ultimately boils down to an assertion that self-actualization ought to entail freedom from self-deception or coercion into choices which simply do not accord with one’s deepest inclinations and desires. Green distinguishes this way of living from acting in accordance with borrowed truths, which involves living in accordance with tradition or popular morality. The problem with borrowed truths, Green states, is that their content “has been dominated by the powerful, and has excluded the marginal. Perhaps religious and what are called ‘traditional’ family values made some people’s lives meaningful; but they also ruined many others, and in fairly predictable ways (p. 381).”
The value of a modern society, in Green’s view, therefore lies in the opportunity to transcend these borrowed truths, at least where self-regarding actions that do not adversely affect the lives of others are concerned. Rather than taking cues from the majority, each individual is to have the right to be true to themselves. In this sense, Green posits the choices and actions pertaining to love and sexuality as an overarching and uniform right for people of all orientations. At stake in cases like Perry is not a right to gay or straight marriage but a right to make choices and to be left alone (p.388).
Returning to Nussbaum, there seems to be a strong agreement in her book with Green’s argument. Taking up on the idea of freedom of conscience, Nussbaum asserts that the American tradition of democracy has historically accorded a great deal of respect to each individual’s ability to live a meaningful life. Respect for something as vital as sexual orientation would, according to Nussbaum, inevitably follow from this tradition. Schenwar’s review continues,
Nussbaum shows that tying gay marriage to our constitutionally granted freedoms is no stretch. She links the right to marry to the key principles of the 14th Amendment: equal protection under the law, and the right to due process and the liberties that come with it. Even more strikingly, Nussbaum ties marital freedoms to the basic values upon which the founding fathers built their vision of democracy.
Many of the early American colonists embraced the notion of conscience: the idea that every human being is born with the drive and the ability to achieve a meaningful life, and that all should be granted the chance to attain it. At that historical moment, when religious preference was the paramount issue, subscribing to a philosophy of conscience meant recognizing the basic right of other humans to follow their own spiritual paths.
This did not necessarily connote approval or even respect of others’ religious traditions, but simply a respect of their right to have them. Nussbaum tells of how Rhode Island founder Roger Williams “refers to Native American religion as ‘satanic’ – even while consistently showing the most delicate respect and friendship to its practitioners.” So strong was Williams’s belief in religious freedom that he called the denial of conscience “soule rape.”
In other words, you may have your disgust, but don’t go injecting it into the politics of rights and liberties.
The normative arguments put forward by both Nussbaum and Green seems to permeate the philosophy of the United States Supreme Court over time. Two prominent recent cases, Planned Parenthood v. Casey and Lawrence v. Texas, in fact affirm these ethical underpinnings of the Fourteenth Amendment. In Lawrence, writing the opinion of the court, Justice Kennedy states, citing the conclusion of Eisenstadt v. Baird,
If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child…
Kennedy continues, referring to the petitioners in Lawrence, who were prosecuted for having engaged in anal intercourse with a member of the same sex, which was illegal in Texas at the time, “the right the petitioners seek in this case has been accepted as an integral part of human freedom in other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”
Though Eisenstadt deals specifically with the right to contraceptives, the same principle was thought to apply in Lawrence, namely that decisions pertaining to relations between two consenting adults were of the utmost importance to their integrity as citizens and that no government intervention was justified as a result. Whether the issue was birth control, reproductive rights, or intercourse, the Supreme Court has continually affirmed that at stake in each instance was the right to self-actualization through one of our most cherished means of expression, namely our relations with one another. This principle is perhaps most poetically stated in the Casey decision, wherein the Court states,
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Once again, the rights at stake in Perry are not fundamentally different from those valued or rendered to their heterosexual counterparts. It is indeed the case that equal benefit of the law matters, but the issue at hand goes far beyond the Fourteenth Amendment. Perry and all the issues it represents is a matter of according each other and ourselves the due respect that citizens of a free society owe one another. Rights of marriage, intercourse, relationships, are among the most valuable that many of us will ever exercise in our lifetime, and no matter how we choose to exercise those rights, the root of these liberties inevitably bring us back to the need for self-actualization and expression in accordance with our own desires, desires which no other individual or entity is entitled to infringe.
I’ll leave the last word to Ted Olson, whose Newsweek article “The Conservative Case for Gay Marriage” asserts that same-sex marriage and LGBT rights in general are not new and radical departures from traditional rights and principles, but are rather reflective of the deepest foundational principles of democracy. Olson states,
No matter what you think of homosexuality, it is a fact that gays and lesbians are members of our families, clubs, and workplaces. They are our doctors, our teachers, our soldiers (whether we admit it or not), and our friends. They yearn for acceptance, stable relationships, and success in their lives, just like the rest of us.
Conservatives and liberals alike need to come together on principles that surely unite us. Certainly, we can agree on the value of strong families, lasting domestic relationships, and communities populated by persons with recognized and sanctioned bonds to one another. Confining some of our neighbors and friends who share these same values to an outlaw or second-class status undermines their sense of belonging and weakens their ties with the rest of us and what should be our common aspirations. Even those whose religious convictions preclude endorsement of what they may perceive as an unacceptable “lifestyle” should recognize that disapproval should not warrant stigmatization and unequal treatment.
When we refuse to accord this status to gays and lesbians, we discourage them from forming the same relationships we encourage for others. And we are also telling them, those who love them, and society as a whole that their relationships are less worthy, less legitimate, less permanent, and less valued. We demean their relationships and we demean them as individuals. I cannot imagine how we benefit as a society by doing so.
Anyway, that’s just my opinion what the hell do I really know?