Tuesday, May 26, 2009

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:

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

Most rightful judge!

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

Most learned judge! A sentence! Come, prepare!

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...


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


Tobias Stanislas Haller BSG said...

Most excellent. So much struggle over a word -- a word some people desperately want, and willing to accept the blessing without the word it that must be, a word "defended" by legions of those who either make no use of it or use it only for a while.

I'm reminded of another Shakespearean quote: Falstaff's "What is that word... air." And, of course, "What's in a name..."

Much good this bloodless, joyless, lifeless victory will do for those who supported Prop8. A costly victory indeed. (It will be interesting to see if this affects church attendance on Pentecost. Oh, for a flood of righteous language!)

Christopher said...

As I noted at Jared's blog:

The problem is in terms of case law. DPs/Civil Unions have next to none. So for example at a hospital in Humboldt Countya couple of years back, nurses and doctors blatantly ignored one partner’s plea to see the other even after he repeatedly protested that they had a domestic partnership. Yes, he sued after the fact, and the hospital was ruled in the wrong (though if I recall no damages were awarded). Small comfort when his partner was dying on the hospital bed.

R said...


Your point is well-taken, and lends tangible, if not legal weight to the moral content of social recognition in my original post.

Would that this have struck home more in the case before the CA Supreme Court!

All the more reason Prop 8 should be overturned. And I believe it will be. . .I hope sooner rather than later.

Göran Koch-Swahne said...

Richard, I think you just struck the proverbial head of the proverbial nail.