Portia and Prop 8

The hollow case for Proposition 8 won a hollow victory today in California - one that I find positively Shakespearean the more I reflect on it. Remember Merchant of Venice? Set aside the rank anti-Semitism of the play with me for just a minute and recall Portia's clever solution to Shylock's sadistic collateral from the merchant Antonio for his failure to pay a debt:

PORTIA
A pound of that same merchant's flesh is thine:
The court awards it, and the law doth give it.

SHYLOCK
Most rightful judge!

PORTIA
And you must cut this flesh from off his breast:
The law allows it, and the court awards it.

SHYLOCK
Most learned judge! A sentence! Come, prepare!

PORTIA
Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are 'a pound of flesh:'
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.

The Supreme Court of California, in a subtle but brilliant decision, ducked the veiled threat of recall by Prop 8 supporters and avoided taking the blood of tangible rights and privileges from same-sex couples. And I mean that covenanted blood protected - if not by marriage for those fortunate in timing, then by domestic partnership laws already offering equal protection.

There's more than a bit of divine humor in the Portia-like decision. Prop 8 supporters knew a direct attack on rights and privileges of couples would never fly in the polls -- even less so in the courtroom. So they settled for the idol of the term "marriage," but without real substance save perhaps social recognition.

That is now the true moral disappointment for couples seeking equal protection, at least it seems to me: the loss of the social recognition of the term "marriage." But time, the arc of justice, and possibly even the divine sense of humor are on their side. Separate but equal is a legal foundation of shifting sand. Legal "marriage" will be theirs again in the long run.

Prop 8 supporters may cheer over their "pound of flesh" and the slowly separating pottage they have unwittingly wrought with no fewer than three legal classes of protected couples in California: those "straight" and married, same-sex couples married between the last court decision and the passage of Prop 8, and those receiving rights and privileges under domestic partnership laws.

But the cheers ring hollow, because the "pound of flesh" is less substantive and more a mere ghost of definition under law. It has no tangible substance in California except a social projection without distinction of rights and privileges. . . a dumb idol, legally speaking, and perhaps morally and spiritually, too.

The hollow case has become the hollow definition.

Don’t look now, but Prop 8 supporters, for all of their money and efforts, have secured a Pyrrhic victory – one that has eviscerated their cause as they are shepherded into a cold, narrow definition of their own legalism just as Shylock was.

Thankfully, God's grace is more generous than Shakespeare. But I have to chuckle while standing in solidarity with my LGBT sisters and brothers.

Portia would be proud...

Updates:

Bishop Marc Andrus responds
Zoe Cole offers more legal perspective on the decision
Will Scott offers moving personal witness