Following up on my tweets last night, Judge Vaughn Walker yesterday provided several dozen questions to the plaintiffs and defendants in Perry v. Schwarzenegger, the lawsuit challenging California’s constitutional ban on marriage by same-sex couples, enacted by Proposition 8 in 2008. Although I sometimes like to pretend I’m a constitutional lawyer, I’m not, so I’ll recommend Nan Hunter’s analysis of Walker’s questions, which she thinks suggest “the Walker opinion will be a blockbuster, at least in terms of its scope, depth and detail.”
Like Hunter, I was struck by Walker’s questions about immutability, “choice,” and social construction. She writes:
One of Judge Walker’s concerns gives me some apprehension: he seems to have been drawn into what I consider to be the deadend of thinking that immutability has any constitutional significance. Thus these questions to both sides: “What does it mean to have a ‘choice’ in one’s sexual orientation?” “What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not women? Must gay men and lesbians be treated identically under the Equal Protection Clause?” Note to Judge re: that last question: have you ever heard of sex discrimination?
“Constitutional significance” is a key qualifier here, I think. Even as the Perry trial remains very much a battle waged on the ground of constitutional law, it has also been elevated into something more: a grand contest, where accumulated expert opinion and logical argument were mobilized toward the goal of legitimating gay people and gay rights to a larger public, and of discrediting those who disagree. That’s why Prop 8 opponents sought, ultimately unsuccessfully, to have the Perry trial broadcast, and that’s why two different staged reenactments of the testimony have emerged since.
And in this context, Walker’s questions are bracing and difficult ones, because they cut to the heart of several powerful assumptions that drive much of the contemporary gay and lesbian movement—and, perhaps even more so, underlie arguments made by the movement’s increasingly numerous straight supporters.
First, it’s safe to say that, in general, the movement and its allies reject the notion that sexual orientation is mutable or chosen. (Remember, for instance, the freak-out occasioned in 2007 when New Mexico Governor Bill Richardson told Melissa Etheridge “It’s a choice!” at HRC’s presidential candidate forum. “To gays and lesbians, flubbing the choice-vs.-nature question is like botching the answer to ‘What’s one plus one?'” moderator Jonathan Capehart wrote afterward.) But a close cousin of the “biology vs. choice” question, the “essentialism vs. social construction” debate in gay and lesbian studies, leans toward some version of the latter. There are, of course, sensible ways to reconcile the two, at least in spirit. Just because sexual identity has been understood in different ways at different times and in different places doesn’t mean one can easily step outside the way it’s understood at one’s own time and in one’s own place, which is the basic point made by saying, “It’s not a choice!” But it’s not as simple as “one plus one,” and Walker’s questions point toward the drawbacks of trying to construct a persuasive argument for gay rights solely on the unstable sands of innate sexual orientation.
Second, while sex discrimination may provide the legal answer to Walker’s curiosity about differences between gay men and women, his question points out the often-unquestioned assumption that the gay and lesbian movement is just that–a gay and lesbian movement, in which men and women are similarly situated and share common goals and strategies. (The fault lines among gay, bi, and trans people in the LGBT movement are, by comparison, more-often visible.) But again, conflict and debate between gay men and gay women have been and are just as prevalent and just as significant as agreement and cooperation. An enormous, complex history, as well as contemporary gender dynamics as complicated as those around race and class, are patched over by the casual, if handy, term “gay and lesbian movement.” And Walker’s question provocatively chips at some of the hidden cracks.
At any rate, I’ll be fascinated to see how the two sides reply.