Objection

by jkatejohnston

27 June 2015

Dear Max,

I just read the Obergefell majority opinion (striking down state laws that ban gay marriage) and found myself having ungrateful thoughts, like, why does he have to write that way?

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.

Or: “Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”

Wow.

We just want to be able to die without getting screwed. We don’t respect marriage. We need it. (I say “we,” but I don’t know if Teresa agrees with any of this.) Kennedy should have said more about debt, inheritance, community property and taxes and less about transcendence. And why was this decision all about fundamental rights (no one knows what those are) when it could have been about equal protection of the law, which makes sense to almost everyone? (Kennedy mentions equal protection but doesn’t pursue it.)

Then I read Roberts’s dissent. He summarized the embarrassing history of fundamental rights with lawyer-like efficiency. (Today’s fundamental right is tomorrow’s discredited social trend. It’s an area where the Supremes have had to overrule previous decisions.) Then I read Scalia’s dissent and I found myself in uncomfortable agreement with him when he said he’d rather put a bag over his head than sign an opinion written like that, even if he agreed with it. Which he does not.

Somewhere in the middle of all this, there was noise outside, two young men riding by on their bikes, wearing rainbow shorts and no shirts, hooting and hallooing down the street, waving a rainbow flag.

They’re right and hurrah! Who cares if Kennedy is a blow hard? Who cares if you call it equal protection or fundamental rights? (I do because equal protection is sturdier.) But anyway, it’s a great day.

*

I’m trying to understand my mostly-sour response, and I can’t. I’ve always been irritated by the cult of marriage. There’s a smugness about it that I can’t stand. Looking around at my friends, I’d say that a good divorce just as important as a good marriage. But if it weren’t for marriage laws, you couldn’t get a good divorce, that is, a fair one. The most important time to be married is when the marriage is ending.

I just looked at our Certificate of Domestic Partnership from Santa Barbara County in 2000. Somewhere we have our Certificate of Domestic Partnership from the State of California, dated whatever year they started giving those out. And our marriage license from San Francisco County in 2004. And Enzo’s 2006 birth certificate with both our names on it that Kaiser didn’t quite know how to do, but I showed them. (They wanted to list us as mother and father, and I made them change it to parent and parent.) And our marriage license from El Dorado County in 2013. We’ve lived this every step of the way. I probably have diaries of all of it. Maybe I should read them and remind myself of what’s at stake.

27 June 2015

Just read over what I wrote yesterday, and it sounds awfully refined. I don’t want to conclude that I’ve become incapable of joy. Or that bad writing can be separated from bad thinking. Kennedy could have made this decision about fairness. Instead he made it about marriage and how great it is and how everyone has a whole bunch of super-important feelings about it. The sentimentality shows. It weakens the decision.

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