Unpacking the Battle

In literary studies, we talk about “unpacking” a text or part of a text. This means looking closely at it–at its language and form and cultural context–to determine multiple meanings. It drives some students crazy, but when we talk about “critical thinking skills” as one of the benefits of studying literature, this is one of the exercises that develops that mechanism.

I was thinking of this “unpacking” in relation to the California Supreme Court’s decision to uphold the ban against marriage.

I was driving home from running errands when I heard the news on NPR that the California Supreme Court had voted to uphold the marriage ban. I uttered words that get bleeped on television and my happy feelings about Sotomayor’s nomination melted.

I’ve been reading different blogs about the significance of the ruling and kept stumbling upon the logic that argues that the ruling is not actually about banning gay marriage but about protecting the voting decisions of voters.

This is ice-cold comfort.

But according to a blogger over on DailyKos who has done the work of unpacking the language of the ruling, those of us on the side of good shouldn’t feel as bad as many of us do. The post is long, but here is the part that gave my sadness pause:

In last year’s landmark 4-3 decision, In re Marriage Cases, the California Supreme Court decided that same-sex couples have a fundamental right under state law to every single advantage that heterosexual couples do, including the right to call their legal union “marriage.”

Today, the court unanimously upheld the substantive fundamental right. Liberal to conservative, they all now accept it. They construed Prop 8 as narrowly as possible: as a initiative that addressed what we would label these relationships that we normally call marriage. The voters said that we can’t call these relationships “marriage” when they involve same-sex couples. That’s an insult to gays and lesbians and I hope and believe that it will not last. But note what this does not say.

Prop 8, now that the Supreme Court has stripped it down to a bare bone, does not say any of the following:

(1) It does not say that any provision of California law that invokes the label marriage does not also apply to these “civil unions” or whatever we call them — how about “marrijezz”? — that same-sex couples will henceforth undertake.

(2) It does not even say that these legal relationship aren’t marriages. It just says that the voters decided that in California, if they occurred after a certain date, we aren’t going to call them that. This isn’t a minor point: it means that if a couple that has had a California “marrije” leaves the state, they have the right to say that they are “married” and have a correctly spelled “marriage” and — when the Full Faith and Credit case eventually comes down — have the same right to full faith and credit as does anyone from another state who got officially and legally married.

(3) It doesn’t say that the participants in “marrijezz” can’t call each other “husband” or each other “wife” — or that they can’t legally demand to be able to call themselves husbands and wives. This was, in the eyes of the California Supreme Court, entirely about cutting a particular tag off a dress before allowing same-sex couples to buy it. Do you think that the “this is called a marriage” tag is the same as the “I can call this man my husband or this woman my wife” tag? Nope — that’s a different tag. If voters want to eliminate the words “husband” and “wife” from same-sex partners, they have to pass a new initiaitve. Does that start to convey a sense of how deeply the Court carved down Prop 8 today?

I’m still reading through the whole post, but that bit of unpacking is helping ease the sting, if even just a wee bit.

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One thought on “Unpacking the Battle”

  1. The real issue is tax status, visitation rights, inheritance rights, etc. – all of the civil union issues that accrue to the legal definition of a “married” couple – and whether they are recognized among the several states and by the feds. Other than that, look at it as a conspiracy to depopulate the state of California.

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