A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
Day four of the Perry v Schwarzenegger case can be viewed in summary on The Advocate site here and the excellent Trial Tracker here. As the Trial Tracker site notes, there wasn’t much law on day four prima facie. Yet, there is often the misconception that law is about fixed ideas and rules. In common parlance takes the form of “you must do xyz, it’s the law”. Yet if we take the adversarial system which is highlighted in the Perry case and is the same system as English courts, we see it’s all about two arguments. One side putting forward one argument and the other defending/responding. Law is about the uncertain, not the fixed. Uncertain facts, uncertain interpretations. When you get deeply political cases like Perry, the idea of law as uncertain, fluid and widely open to the interpretation and will of individuals appears unusual. It isn’t. Law is not about a dusty set of rules, it’s about people, lives, values. Law lives.
Law was certainly living during day four of the Perry trial in which a string of financial figures were exchanged- costs of insurance, costs of schools and so on, then stats on who would and who wouldn’t marry, projections and a jumble of numbers. Yet, these numbers are important in the consideration of the practical effects of over-turning proposition 8/. Here’s a taster:
‘P: Williams Institute says that at 17%, SF County has highest percentage of gays and lesbians in the state.
E: That’s what it says.
P: You assume that the net impact of the spending due to savings on federal income tax if they are married is by spending 100% of those savings in SF on taxable goods.
E: Yes. That’s an upper end estimate.
[We’re back and forth with Prop. 8 trying to undermine every shred of his economic forecast. ]
P: Report on five years of SF Human Rights Commission equal rights ordinance. Admitted as evidence.
P: Look at page 12 for litigation update. [Trying to show that since litigation is settled and behind SF, there’s no more cost to enforce.]
P: Long series of questions saying that legalizing marriage will not automatically convert domestic partnerships to marriage and that therefore there will still be domestic partners and therefore the need for the domestic partner coverage under the current SF laws.’
So suddenly law is not about rules, it’s about economics. Then it became about the practical effects of prejudice that the lack of marriage can create. Here’s another taster:
‘D: Every day hassles?
M: In prejudice literature we call them every day discrimination events. In ways that hate crimes have social meaning so do these. They are not annoyances when they represent social disapproval. They are felt differently.
M: Examples are plentiful. I read the plaintiffs’ testimony. One of things with which I was struck was filling out forms. Gay people do respond to that. The only way I can explain it is that it’s not about the form, the form evokes social disapproval and rejection and memories of events, including large events that have happened in the past. So it’s this minor thing that people may not even remember, but they have enormous significance. Maybe one was treated in an unfriendly way by one’s partner’s parents. It’s not nice for anyone, but it has great social meaning of rejection and disrespect they have felt in the past.
Judge: What kinds of forms?
M: What I mean by forms is any kind of administrative form, particularly where you have to fill out your marital status. There is no place to put anything, so I say single even though I have been in a relationship for 40 years. I don’t want to get into a long discussion with a clerk in a motor vehicle office. It’s not demanding to cross out a form, it’s not memorable. But it’s memorable to gay and lesbian people because it means social rejection.
D: Type of form is that which you might see at a bank?
D: Travel hassle mentioned by plaintiffs?
M: Yes, very similar. It’s not so much what happened but the meaning of it. A clerk asking about a king size bed is not a big deal, but for a gay person it has huge meaning.
D: Does the fact that that you draw in a box or get the right bed take away the problem?
M: No. It’s not about the result; it’s about “I’m gay and I’m not accepted here.” Someone might not get a job promotion or might not get married not because of prejudice or because they are being blocked, but for example if you are not married, and you are asked constantly if you are getting married it can be prejudice that creates stress. It has double meaning: the action of the non-event (not getting married), but also for the event that results in the continued daily hassles. Not a factor of their lives, but of the negative way in which they are viewed by society.’
As the trial continues, the law will be about emotion, principles, values, ideas and interpretations. Law lives.