The Marriage Prop

By Audrey BilgerFebruary 12, 2012

The Marriage Prop

Image © Paul Bausch 

We wanted to run something on Prop 8, as it's called, one of the most notorious miscarriages of democracy in the ongoing disaster that is our state's referendum system. Audrey Bilger, who teaches Victorian literature at Claremont McKenna College and who has closely followed the passage of the proposition and the legal challenges that overturned it, agreed. Bilger wrote some months ago for us about Jane Austen, the writer who perfected the marriage plot, and Austen's continuing fascination for readers today. The story of Prop 8, Bilger says, is no less compelling as narrative, and although the trial transcripts and supporting documents weigh in at roughly twice the poundage of Austen's collected works, she argues they make just as rewarding reading.

     – Tom Lutz


 AS PROPOSITION 8, my home state of California's ban on same-sex marriage, makes its way through the courts, it leaves behind a trail of documents that will be required reading for anyone who wants to understand American democracy at the dawn of the twenty-first century. Now that Prop 8 has been declared unconstitutional for the second time and the Perry case may be headed to the Supreme Court, we can pause to take stock of this work-in-progress. The Prop 8 trial is, in fact, one of the greatest stories of our time.

I have a personal interest in following this tale even though I won't be directly affected by its outcome. I cringe whenever I hear a politician intone that "marriage is between a man and a woman," implying that marriages like mine are a sham, but my marriage remains legal here, as one of the 18,000 unions that were grandfathered in after the passage of the marriage ban. I was fortunate enough to be able to marry the woman I love, my then-partner of twelve years, during the 143-day period in 2008 when California affirmed the fundamental right of marriage for its lesbian and gay citizens. When all is said and done, the Prop 8 saga is about love, and we can only hope that as at the end of a Shakespearean comedy, obstacles, confusion, and misunderstandings will be swept away, and the marriage celebrations will begin.

But we shouldn't ignore, or forget, those obstacles or misunderstandings: they're part of the story, too. Indeed, I was surprised by how deeply satisfying I found reading the thousands of pages of legal proceedings. As an exercise in democratic citizenship, it sharpened my sense of how social change can take place through the courts and made me hopeful for the future. In everything I've written on the trial for Ms. magazine, the underlying message has been that everyone should read the record, and I urge you, too, to read for yourselves the unfolding pages of history.


When the trial got underway on January 11, 2010, many held out hope that it would be broadcast, so that people could watch the testimony and weigh the evidence for themselves. When those hopes were dashed, numerous writers stepped up, live-blogging and tweeting, reporting and recounting, bearing witness to the twelve-day proceedings and allowing those of us who couldn't be present in the San Francisco courtroom the privilege of following along. For over two weeks, I was glued to my computer and my phone, calling out updates to my wife, or reading them to her in the car. I bookmarked the Courage Campaign's Prop 8 Trial Tracker and Firedoglake on my browsers and kept both open at the same time, with a Twitter feed on the side, hitting refresh again and again as I tried to piece together what was happening half a state away.

I became obsessed. Anyone I ran into while the trial took place heard a blow-by-blow account of the proceedings, accompanied by lengthy descriptions of how the arguments were unspooling and an exhortation to read it for themselves. Ted Olson and David Boies became my new Jagger and Richards, unlikely rock stars in Brooks Brothers suits, wielding extraordinary talents as wordsmiths and logicians. What made me happiest were the official transcripts of the trial that became available online within twenty-four hours of the day's events, thanks to the American Foundation for Equal Rights (AFER), the organization founded by Olson and Boies to sponsor the federal challenge to Prop 8; AFER still has all of the transcripts on their website, and they've archived all of the legal filings. Having devoured every word in cyberspace, I already had some sense of the personae listed in the transcripts, and I read the regular installments of transcribed statements as an evolving serialized drama, awaiting them as a Victorian reader would a new chapter of Dickens or Thackeray.

Live-bloggers incorporated details the transcripts didn't: audience reactions, running commentary, descriptions of the key figures and their mannerisms. The composite of the unofficial and official versions gave me some sense of what it must have been like to be there. On Day One at 10:35 a.m., Rick Jacobs, live-blogging for the Courage Campaign, uploaded the following choppy version of an exchange between Judge Walker and the Prop 8 proponents' lead attorney, Charles Cooper:

COOPER: ...Marriage was always between a man and woman. It's all about procreation.

JUDGE: Is that the only reason for marriage?

COOPER: "Pro-child" institution. [People laughed...] [italics added]

JUDGE: Are the other values of marriage, such as companionship, secondary?

COOPER: Evidence will show that marriage will be de-institutionalized.

Epigrammatic, typed in haste in the heat of the moment, this entry brings to life what was happening among trial spectators. As soon as people heard Cooper bring up the procreation argument, they laughed at its patent absurdity. As Jacobs parenthetically opined in the same entry:

(So this guy is going down the rabbit hole. He's attacking the very essence of the modern family, that family that has one parent, that adopts. He's making this about whether the gays will hurt children. I think he has to lose. I really do. It's not internally consistent.)

In the court report from that first day, we can read the word-for-word text of Cooper's speech and note that he is far from being a convincing spokesperson for the sanctity of marriage:

MR. COOPER: ...the purpose of the institution of marriage, the central purpose, is to promote procreation and to channel narrowly procreative sexual activity between men and women into stable enduring unions for the purpose —

THE COURT: Is that the only purpose of marriage?

MR. COOPER: Your Honor, it is the central and, we would submit, defining purpose of marriage. It is the — it is the basis on which and the reason on which marriage as an institution has been universal across societies and cultures throughout history; two, because it is a pro-child societal institution. The evidence will show —

THE COURT: Where do the other values associated with marriage come in; companionship, support? All of those things that attend a marriage that have nothing to do with procreation.

What's the evidence going to show, that those are secondary, those unimportant values associated with marriage?

MR. COOPER: What it's going to show, your Honor, is that — is that this debate goes to the definition of marriage and what its — what its purpose is; whether it's going to be effectively deinstitutionalized, the word used by the scholars —

It's hard to imagine many straight married couples would endorse Cooper's pronouncements. — "narrow procreative sexual activity" doesn't make for much of a bumper sticker. And this was one of the central arguments advanced by the proponents of Prop 8. What those twelve days made abundantly clear — and this would be highlighted in Judge Vaughn Walker's historic ruling — is that those opposed to same-sex marriage have no reasonable arguments to bring to the table. Ultimately they were outmatched by the abundance of evidence in favor of the fundamental nature of the right to marry and the importance of granting that right to lesbian and gay citizens.

The case against the marriage ban comprises nine of the trial's twelve days: from Ted Olson's opening statement, which lucidly lays out the grounds for the challenge to Prop 8 — that marriage is a fundamental right and that depriving lesbians and gays of the right to marry is unconstitutional — through the heart-rending testimony of the four plaintiffs (two gay men and two lesbians) who tell of the harm they experience by being denied the right to marry, and continuing on through a host of expert witnesses. The evolution of the institution of marriage was discussed, as was the history of gay and lesbian civil rights, and the story of how Proposition 8 made it into the California constitution in the first place. The curious reader will learn of how the Prop 8 campaign employed negative stereotypes about gay people as depraved deviants and child-molesters in order to whip up fear among voters. As the first federal challenge of a referendum-approved marriage ban, the trial presents a compelling argument against this form of discrimination: rights should not be put up to a vote, and when the rights of a minority group are voted on, discrimination has frequently ensued.

A highlight of the trial transcript is David Boies' cross-examination of David Blankenhorn, the star witness — although there were only two — in support of the marriage ban. The AFER team challenged Blankenhorn's status as an expert witness, his lack of academic affiliation, and the shortage of credible research cited in his "family values"-oriented publications. Judge Walker allowed Blankenhorn's testimony, stating that because this was a bench trial (i.e., not a trial by jury), he would be able to measure its value himself. Like a mustache-twirling buffoon in a melodrama, Blankenhorn blusters and bloviates, arguing circuitously and growing increasingly petulant when questioned. At one point, when Boies tries to keep Blankenhorn from pontificating off-topic and things become heated, Judge Walker intervenes, patiently explaining that "the demeanor of the witnesses is sometimes gauged, importantly, by the responsiveness of the witness to the questions that he's asked":

So with that in mind, because I'm sure you would not want your demeanor on the stand to be a negative factor in your testimony, I would urge you to pay close attention to Mr. Boies's questions and to answer them directly, succinctly. Then to the extent additional elaboration should be brought out, your very able counsel, I'm sure, Mr. Cooper, will be able to do that.

Boies puts Blankenhorn on the ropes, showing how his publications are at odds with those produced by credentialed social scientists and quoting directly from his published writings to highlight the inconsistency of his testimony. In a particularly striking moment, Boies reads from one of Blankenhorn's books an excerpt on how the "profound principle of equal dignity" is a key feature of American democracy:

"After all, part of the reason why the principle is so revolutionary is that it can grow and deepen over time. Groups that had long been considered effectively outside its moral reach, African-Americans, women, people of certain colors or languages or religions, can over time and often as a result of great struggle, enter into its protective sphere... I believe that today the principle of equal human dignity must apply to gay and lesbian persons..."

At this point, Boies pauses to confirm: "The 'I' there is you, correct?" "That's correct," Blankenhorn affirms, and then Boies continues:

In that sense insofar as we are a nation founded on this principle, we would be more, emphasize more, American on the day we permitted same-sex marriage than we were on the day before.

In case you're wondering how Blankenhorn squirmed out of that spot, suffice it to say that he never really did. Having acknowledged that he believes that marriage rights have to do with "equal human dignity," he proceeded to contend, with great contortions under Boies' deft questioning., that granting that right to lesbians and gays runs counter to the greater public good. For this, he offered no factual evidence.


Although the trial was videotaped, the proponents of Proposition 8 have successfully fought to keep the tapes from being made public; meanwhile, various attempts have been made to bring this momentous trial to life in publicly accessible video form. On, you will find an earnest re-enactment of the entire proceedings. At the Courage Campaign's website, you can view uploaded videos of people reading trial excerpts aloud, including well-known actors such as Marisa Tomei, Josh Lucas, Alan Cumming, and Ellen Greene. A play by Dustin Lance Black, entitled simply 8, is currently being performed in cities around the country, with proceeds benefiting AFER and the ongoing Prop 8 legal battle. 8's slogan sets the stage for high drama: "An unconstitutional proposition. An unprecedented decision. An all star-production."

While I applaud these attempts to get people to take notice of the Prop 8 trial in all its glory through performances and re-enactments — and I deeply regret that the courts have refused to allow the actual tapes of the trial to be made public — the magnitude of the trial proceedings can only be fully appreciated by reading them: all 2,953 pages, with bonus points for making it through the amici briefs, filings, and appeals. If that's too much of a commitment, at least read the most majestic piece of writing to come out of the Prop 8 trial: Judge Walker's 136-page ruling. Rachel Maddow, in her MSNBC coverage of the historic decision, called Judge Walker's ruling "a page-turner," "better than any novel you could be reading." And even though it's my job, as an English professor, to make the case for the reading of novels, I couldn't agree with her more. My printout of the ruling (I'm old-school like that) is dog-eared and thumbed-through, spiked with Post-its on the top and side, underlined and highlighted. Like great literature, the decision speaks to some of my deepest needs. Judge Walker gets to the heart of why Prop 8 does so much damage:

Proposition 8 places the force of law behind stigma against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

Politicians who speak out against same-sex marriage these days tend to pretend they have nothing against gay people personally (even Sarah Palin apparently has a gay friend), but the truth is that marriage bans treat same-sex couples as second-class citizens, or, to use Judge Walker's words, "Proposition 8 requires California to treat same-sex couples differently from opposite-sex couples." Walker's conclusion is unequivocal: "Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional." 

In one of the more dramatic novelistic subplots, Judge Walker exposes the proponents of Prop 8 as hypocrites for having campaigned to pass the marriage ban using one set of arguments (fear and hatred of gays) and then having taken up a completely different line of argument when they appeared in court (marriage is for procreation). "The evidence at trial regarding the campaign to pass Proposition 8," Judge Walker writes, "uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are essentially morally superior to same-sex couples." The judge slaps down Blankenhorn as having "provided no credible evidence to support any of the claimed adverse affects proponents promised to demonstrate." The ruling notes the number of religious organizations involved in supporting Prop 8 and asserts that religious disapproval is an insufficient ground on which to prevent individuals from exercising their fundamental rights:

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

The point about marriage as a civil matter gets lost in the heated rhetoric that typically surrounds this issue in the political sphere, but it's an extremely important one, as is the point that "[m]oral disapproval alone is an improper basis on which to deny rights to gay men and lesbians." 

As a feminist, I am especially heartened by the way the advances of women's rights figured in the Prop 8 trial and decision. Implicit in many of the "protect marriage" arguments is the idea of a "traditional" family with different roles for men and women within the household. Judge Walker succinctly dismisses this conservative view of marriage: "Gender no longer forms an essential part of marriage; marriage under the law is a union of equals." Or, as eloquently expressed in one of my favorite passages (underlined and highlighted):


Proposition 8 ... 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 civic life.

The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state's interest in equality because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.


Addressing the proponents' claim that "responsible procreation is really at the heart of society's interest in regulating marriage," Judge Walker notes that "When asked to identify the evidence at trial that supported this contention, proponents' counsel replied, 'you don't have to have evidence of this point.'" But, as the judge makes clear, "Tradition alone...cannot form a rational basis for a law." 

After weighing the evidence presented at trial, not only did Judge Walker declare Proposition 8 to be unconstitutional, but he also waved aside the notion of "same-sex marriage" as a meaningful label:

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs' objective as "the right to same-sex marriage" would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

If the August 2010 decision had taken effect, the number of same-sex couples married in California might have quadrupled in the time it took to get to the most recent ruling by the Ninth Circuit Court of Appeals in February 2012. However, the proponents of the marriage ban immediately applied for and received a stay pending appeal. Time passed, real human lives were lived and lost, and the spell of Proposition 8 continued to hold sway.


In the long months that followed Judge Walker's ruling, the Prop 8 storyline grew less straightforward. After the Ninth Circuit heard the initial appeal, over a year went by while they waited to hear back from the California Supreme Court regarding the question of whether the proponents of the marriage ban had standing to appeal Judge Walker's decision (since the state of California refused to defend the marriage ban). That decision was passed along in November of 2011, and last week, the Ninth Circuit issued their ruling. Three main issues were addressed: they revisited the standing question and sided with the California court; they ruled on a preposterous side issue of whether Judge Walker's ruling should be thrown out because he himself is gay and could stand to benefit from his own decision; and most significantly, by a 2-1 vote they declared Prop 8 to be unconstitutional.

The Ninth Circuit based their ruling against Prop 8 on the grounds that it deprived lesbian and gay men of an existing right "without a legitimate reason." Far less expansive than Judge Walker's ruling, this decision adhered to a principle that "courts generally decide constitutional questions on the narrowest grounds available." Rather than taking up the issue of whether bans on same-sex marriage violate the constitution in a broad sense, the court ruled on the basis of California's particular marriage ban, which in its very language sought to "eliminate the right of same-sex couples to marry." Since the California Supreme Court had overturned an earlier marriage ban, Proposition 22, and had declared marriage to be a fundamental right, the Ninth Circuit ruled that, once granted, rights cannot be taken away. 

One overtly literary section of the Ninth Circuit decision is a meditation on the word "marriage." Those who seek to deprive lesbians and gays of marriage argue for the word's "unique meaning," the ruling states, and for "a significant symbolic disparity between domestic partnership and marriage." Alluding to one of the most famous love stories of all time, Romeo and Juliet, the judges poetically remark that "A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not." In a whimsical vein, they go on to substitute "registered domestic partnership" for marriage in a variety of contexts to illustrate just how emphatically dissimilar these states are:

We are excited to see someone ask, "Will you marry me?", whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?"...We see tropes like "marrying for love" versus "marrying for money" played out again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.

Even though the decision stops short of saying that marriage equality should be a nationwide right, protected by the constitution, it takes a stand on the side of love: "We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries." 

The two plaintiff couples of the Prop 8 trial — Kris Perry and Sandy Stier, Paul Katami and Jeff Zarillo — seek what lovers at the center of so many classic romance tales desire: marriage. Their love stories hang in the balance, as do the love stories of other California same-sex couples who are unable to partake in the right to marry. Whether or not the marriage ban will be lifted remains to be seen, but tribute must be paid to those who have worked hard in the courtroom to try to repeal this unjust and discriminatory constitutional amendment, the brilliant minds who have been working to write a happily-ever-after conclusion to this story. 

Unlike works of fiction, where we as readers enjoy having our suspense prolonged, in this real-world saga we'll be glad to get to the last page. Until we do, of course, we won't be sure what genre of story we've been reading. With all due respect to the judges' fondness for Romeo and Juliet, I hope it's a comedy. Something along the lines of Much Ado About Nothing.


LARB Contributor

Audrey Bilger is the Faculty Director of the Center for Writing and Public Discourse and Professor of Literature at Claremont McKenna College. She is the author of Laughing Feminism: Subversive Comedy in Frances Burney, Maria Edgeworth, and Jane Austen and editor of Jane Collier’s 1753 Essay on the Art of Ingeniously Tormenting for Broadview Literary Texts. She writes for Ms. magazine and the  Ms. blog and is a frequent contributor to Bitch: Feminist Response to Pop CultureHer latest book, which she coedited with Michele Kort, is Here Come the Brides! Reflections on Lesbian Love and MarriageShe is the Gender and Sexuality Editor of the Los Angeles Review of Books.


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