Those are pearls that were his eyes:
Nothing of him that doth fade
But doth suffer a sea-change
Into something rich and strange.
“Ariel,” The Tempest, I.2
It must be unusual for a culture in the midst of a sea change to see the palpable signs of that change unfold in real-time as we are now. But, as evidenced by the build-up surrounding the Prop 8 and DOMA oral arguments before the Supreme Court this week, that is precisely what is happening now with attitudes toward homosexuality and the right of LGBT folks to be treated as equal under the law. The times they are a’changin’—rapidly, unmistakably.
I remember sitting in a law firm conference room only a few years ago while some lawyers made overtly homophobic remarks. Meanwhile, I knew that one of our other colleagues in the room at the time was gay, though in the closet. Thinking about the agony he must have been feeling at that moment—and in so many similar moments—made me see red. But all I did was start waxing lyrical about the then-recent film Brokeback Mountain. My comments only succeeded in getting the trash-talkers more fired up. Later, I thought about how progress comes in fits and starts: I believed that these same lawyers would not have dared make similar racist remarks in a law firm conference room; but there did not seem to be any self-consciousness about making homophobic and sexist remarks in such quarters at that time. I wondered then how long it would be before being openly gay was as acceptable in a law firm as it was in the theater world in which I had spent about three decades before heading to law school.
Now it really does seem that things are different. It’s not that racism, homophobia, and sexism are vanishing from the earth—or even from the hearts of most people. But a sufficient mass of people are not comfortable with the animus—the “moral opprobrium”—that fueled the passage of the “Defense of Marriage Act” in 1996; therefore, the feeble rationale for discriminating against legally married same-sex couples is easier to spot. That is, attempts to justify the distinction are more obviously difficult to make—at least in terms of the traditional methods of persuasion associated with legal analysis. The vector of change is also now obvious to most. (Even Chief Justice Roberts commented on the “sea change” from the bench during the DOMA argument yesterday, though he suggested that it might be attributable merely to the “political force and effectiveness” of the gay rights movement: “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” he said to Roberta Kaplan, arguing for the Respondent.)
Political developments often reflect or try to capitalize on the winds of change—which can be quite ephemeral and whimsical. But political sea changes that result in greater inclusivity are generally grounded in the triumph of both reason and empathy over reactionary thinking and fear of The Other. And although sea changes can seem abrupt, they are really the result of a long, dynamic process that involves many fits and starts, not a linear trajectory. Shakespeare, for instance, might have found the whole tempest over gay marriage confusing since he did not hesitate to write love poems to both a young boy and an older married woman—all while he himself was married to an even older woman whom he had knocked up and then virtually abandoned when he was really still a teenager. That is, the utopic notion of marriage as a sacred bond between one man and one woman only that exists principally for the purpose of begetting legitimate children, Shakespeare would not have recognized. After all, in his day, marriage was really about the exchange of property—with the woman being the main item of property involved in the transaction as a matter of law. And in plenty of places in the world at that time, the Biblical standard of polygamy was still the preferred form of marriage for those men who could afford it. So each time I hear someone defending DOMA based on the premise that marriage has “always” been about a certain type of relationship between one man and one woman, I wonder how carefully they have read their Bible. If the Bible is the touchstone for contemporary arguments about how homosexuality is a scourge and so homosexual people cannot be allowed to marry or at least how this minority group cannot be permitted this option, despite the 14th Amendment’s Equal Protection Clause, unless and until the majority in every state decides to permit it, then it is hard to see how the cultural sea change that led to rejecting Biblical notions of polygamy as the gold standard for marriage can be justified. Constitutional interpretation should not be a matter of political whim, personal preference, or religious creed; but constitutional interpretation shouldn’t be oblivious to coherent political sea changes that resonate with fundamental democratic principles either.