Linda Greenhouse: Hiding in plain sight

Posted by Linda Greenhouse on

"Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails. 'Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines' until recently, he said. 'Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.'

"Judge Walker cited the advent of no-fault divorce (which New York is about to become the 50th state to adopt) as a marker of how the legal system no long prescribes roles for marriage partners based on their sex. Evidence at the trial, he said, showed 'the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles.' As a result, the judge continued, 'gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents,' and 'gender no longer forms an essential part of marriage; marriage under law is a union of equals.'

"Judge Walker’s conclusion was that Proposition 8, the state constitutional amendment confining marriage to opposite-sex couples, 'thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civil life.' Proposition 8 'mandates that men and women be treated differently based only on antiquated and discredited notions of gender.'

"There is much more to Judge Walker’s analysis, but it seems to me that this revelation is the heart of it: that while we have been fussing about the freedom to marry, marriage itself has undergone profound change as the result of forces completely independent of federal judges. Judge Walker is saying basically that he is not 'redefining marriage' — the charge instantly leveled by critics of the opinion. We, collectively, in California and elsewhere in today’s United States, have done the job ourselves.

"If Judge Walker’s opinion survives on appeal in its full sweep, I think it will be on this basis. Will it survive? I’m not ready to predict. Clearly, the societal changes that Judge Walker identified, the inexorable erosion of the gendered boundaries that prescribed separate roles for men and women in the home and in the world, are the very changes that have animated the religious right for decades. Deep disquiet over those changes fueled the successful opposition to the Equal Rights Amendment in the 1970s and is a major part of what continues to make marriage equality a polarizing issue here even as other countries are managing to put the debate behind them in growing numbers. (Argentina’s Congress legalized the freedom to marry last month; it is legal as well in Canada, South Africa, Spain and six other European countries. The Mexican Supreme Court ruled this week that marriages of same-sex couples performed in Mexico City, where they are legal, must be recognized as valid throughout the country.

... "A Supreme Court showdown on marriage equality, if one comes, is probably at least 18 months away, further complicating prediction. The justices, or at least some of them, are likely to pay close attention to how the public responds, both to Judge Walker’s opinion and to the Court of Appeals decision that will come next. One early straw in the wind was a CNN poll last weekend, after the ruling, in which 52 percent of the respondents answered yes to the question, 'Do you think gays and lesbians should have a constitutional right to get married and have their marriage recognized by law as valid?' According to Evan Wolfson, executive director of Freedom to Marry, this was the first time a national poll showed majority support for same-sex marriage.

"Given that last week’s decision is most unlikely to be the last word, the real contribution of Judge Walker’s fact-filled opinion, and of the trial that preceded it, may be to enable a better informed public conversation. Knowledge can change perceptions, which in turn can change reality."

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