Constitutions, Recognitions

Under a rule of law, if a mode of recognition is held to be an inalienable constitutional right, is it possible to “carve out a narrow exception” to that mode of recognition by means of altering the constitution (codification) of that right by a majority vote? Are there any extraconstitutional or inherent limitations in the American legal conception of ‘equal protection’ (installed federally with the 14th Amendment, and applied slowly in parts to the states beginning with the Civil Rights Cases in the 1950s) which would precondition the attempt to deliberately thwart ‘equal protection’ for a suspect class of citizens (ie, the rigidly classified ‘gay’ and ‘lesbian’ citizens)?

Such were the questions answered for the state of California by the California Supreme Court last week in Strauss v Horton, the final installment of the state’s three marriage cases since 2004. In In Re Marriage Cases (Spring 2008) the Court held that both same-sex and opposite-sex couples enjoy the right to marriage under the state’s constitution, and that the denial of marriage--including the use of the moniker ‘Marriage’--violated constitutional rights found in both Due Process and Privacy. In November of 2008, California voters accepted (through a majority ballot) Proposition 8, a constitutional amendment adding a section to the state constitution whereby “only marriage between a man and a woman is valid or recognized in California.” Last week, the California Supreme Court in a 6-1 decision both accepted this amendment as valid and accepted the means by which it passed (that Proposition 8 qualified as an amendment and not a revision of the governmental framework and plan in California).

As a direct result, an estimated 18,000 same-sex couples (wed between May and November 2008) are in a legitimation limbo: their marriages are valid, since it was constitutional at the time to become legally coupled with that moniker, but no more same-sex marriages will be recognized until another constitutional amendment is passed to annul Proposition 8.

The time of this week’s Butler readings are particularly apt to discussing ‘gay marriage’ and the thorny issues of recognition and legitimation at play here. What is at stake in opening the symbolic allocation of marriage, and is it “preferable to altering the requirements of kinship”? In the turn to the state for legitimation of a version of kinship, do we eclipse the “proliferation of sexual practices outside of marriage and the obligations of kinship?” Where are the possibilities of resisting “the lexicon of legitimation” braided by the state, but required to advance same-sex marital recognition?

In one sense, the latest discussion on this Blog over the arrangement of ‘politics’ and ‘ethics’ (or politics/ethics - wait, why is ethics the bottom here :p ?) and the ‘fields’ and ‘domains’ in which they might be understood to ‘operate’ is perhaps precisely the catachresis to which Butler points (UG p107) here, and, turning, compels the reader to take stock of our critical functions and “to scrutinize the action of delimitation itself.” In another sense, the critical perspective needed to perform that scrutiny “that operates at the limit of the intelligible”, she suggests, “also risks being regarded as apolitical.”

But rather than sliding into the well-covered ‘debate’ over the State recognizing ‘gay marriage’, a debate which Butler has still left us in the paradox where “both the ‘yes’ and ‘no’ works in the services of circumscribing reality in precipitous ways” (UG p130), I want to further investigate the curious means by which California has framed the debate. Namely, individuals (ie, voters) have decided the latest word on the statuses of marital recognition in the state via majority rule. Rather than interpreting legislative, executive, or other juridical action, the Court questioned whether or not California voters have the ability to “carve out a narrow exception” to constitutional rights for certain classes of people. Proposition 8 did not deny the right for same-sex couples to be legally recognized or afforded rights as such, “only” that same-sex couples could not employ the term (or fall within the jurisdiction of the term) Marriage.

How might “we”, as political beings, reframe kinship against majoritarian legitimation? Equal Protection is allegedly “by its nature, inherently, countermajoritarian” according to Justice Moreno, who dissented in Strauss. How do we mobilize that generatively without further exclusions, creating more margins? Is it possible to disidentify with the state using social/coalitional means while simultaneously referencing or making use of its networks? I ask this question because I’m not prepared to advocate a wholesale rejection of the state apparatus; I fundamentally believe in the concept of social welfare (if nothing else), and I think the project to bring as many people and groups within that communal welfare is a valid political task. Proposition 8 has the opposite effect (an exclusion of a class from a certain aspect of the social welfare system), yet makes use of the same organizing principal behind direct democracy (that is, people themselves initiating and voting on issues) which makes things like ‘rights’ coherent in the first place.

Even the most brittle of postmodernist legal scholars, like Stanley Fish, are open to this operation of rights-exchanges in democracy. Fish writes in the New York Times, “Democracy is a form of government not attached to any pre-given political or ideological ends, but allows ends to be driven by majority vote of its free citizens...it is the only form of government that (theoretically) contemplates its own demise with equanimity.” But in the case of Propositon 8, or any other voter-driven referendum on social classes, how do we seek legitimation from our neighbors? And is that the same “lexicon of legitimation” employed when we petition the state to recognize certain rights, classes, or individuals?

Even the “radical” move (with which I sympathize) to remove Marriage (and all of the religious baggage accompanying it) from the state/civil sphere completely and sanctioning only ‘unions’ for all couples in the eyes of the law, still includes a tacit fortification of monogamy as well as foreclosing sexual practices and kinship practices currently unintelligible (à la Butler). If it’s an issue of incrementalism, to what degree are we still making the mistake of taking “the definitions of who we are, legally, to be adequate descriptions of what we are about” in the ‘radical’ move I advocate above? (PL p25, UG P20)