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Hiding in Plain Sight—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on August 12, 2010.

Hiding in Plain Sight
By Linda Greenhouse ’78 MSL

The intense public and media attention to Judge Vaughn R. Walker’s decision in the California same-sex marriage case led me to wonder how the media responded 40 years ago to another Federal District Court ruling — the decision that declared the Texas criminal abortion law unconstitutional, in a case called Roe v. Wade.

My database search yielded a surprise. The New York Times reported the decision, issued by a three-judge Federal District Court in Dallas on June 17, 1970, in a 251-word article by The Associated Press, “3 U.S. Judges Rule Laws on Abortion Invalid in Texas.” The story ran on page 37.

What a difference a generation makes.

There are obvious reasons that the district court decision in Roe v. Wade failed to turn the country’s head as did last week’s ruling Judge Walker’s decision in Perry vs. Schwarzenegger. The case against the Texas law, which dated to 1857 and prohibited all abortions not necessary to save a pregnant woman’s life, was only one of nearly three dozen cases challenging similar laws across the country.

The notion of legally sanctioned same-sex marriage seemed too far-fetched to ponder, until it didn’t.

There was no particular reason to think that this would be the case that would decide the issue, and quite a few reasons to expect otherwise. (For one thing, “Jane Roe,” barred from getting an abortion, had given birth, and the Supreme Court might well have regarded her case as moot.) And rather than having been litigated by two famous lawyers, Roe v. Wade was the product of two recent law school graduates, Sarah Weddington and Linda Coffee. They weren’t famous, and neither was their case.

Even so, you would think that some editor’s eye might have been caught by this rather breathless overstatement in the A.P. story: “The ruling was that the fundamental right of a single woman or a married couple to choose whether to have children was protected by the Ninth through 14th Amendments.” (Had a federal court actually ruled that enforced motherhood amounts to the kind of slavery that the 13th Amendment prohibits, presumably a few more people, even journalists, might have noticed.)

So there must be a reason that the district court abortion decision was not considered more important. It can’t be because Times editors or readers were ignorant of the rapidly evolving abortion issue. Just two month earlier, in April 1970, the New York Legislature had repealed the state’s 19th century abortion law, a highly visible drama complete with an emotional debate and a one-vote-margin cliff-hanger of a final act.

Maybe the compelling legislative drama in Albany used up all the air in the first half of 1970. People who simply didn’t anticipate that the courts would become major actors on the abortion question couldn’t see the parallel judicial drama as it began to play out before their eyes. How often do we fail to recognize something, or someone, we don’t expect to see?

The same is true of the trajectory of the same-sex marriage issue. Gay couples began going to court to claim a right to marry at almost exactly the same time that women began turning to the courts to claim a right to abortion. The student body president of the University of Minnesota Law School brought a marriage case in the Minnesota state courts in 1970, after he and his partner were denied a marriage license by the local county clerk. In a dismissive two-page opinion, the Minnesota Supreme Court observed that the 14th Amendment’s due process clause was “not a charter for restructuring” the “historic institution” of marriage “by judicial legislation.” The United States Supreme Court dismissed the appeal. Numerous other cases followed, in California and other states, throughout the 1970s. The lawsuits were not successful, but that’s not my point. The point is that these cases, and the claims on the Constitution that they presented, were hiding in plain sight. Few people outside the gay community — or more precisely, outside a well-informed subset of that community — were even aware of their existence. I know I wasn’t. The notion of legally sanctioned same-sex marriage seemed too far-fetched to ponder, until it didn’t.

Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails. “Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines” until recently, he said. “Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.”

Judge Walker cited the advent of no-fault divorce (which New York is about to become the 50th state to adopt) as a marker of how the legal system no long prescribes roles for marriage partners based on their sex. Evidence at the trial, he said, showed “the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles.” As a result, the judge continued, “gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents,” and “gender no longer forms an essential part of marriage; marriage under law is a union of equals.”

Judge Walker’s conclusion was that Proposition 8, the state constitutional amendment confining marriage to opposite-sex couples, “thus 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 civil life.” Proposition 8 “mandates that men and women be treated differently based only on antiquated and discredited notions of gender.”

There is much more to Judge Walker’s analysis, but it seems to me that this revelation is the heart of it: that while we have been fussing about same-sex marriage, marriage itself has undergone profound change as the result of forces completely independent of federal judges. Judge Walker is saying basically that he is not “redefining marriage” — the charge instantly leveled by critics of the opinion. We, collectively, in California and elsewhere in today’s United States, have done the job ourselves.

The real contribution of Judge Walker’s fact-filled opinion may be to enable a better informed public conversation.

If Judge Walker’s opinion survives on appeal in its full sweep, I think it will be on this basis. Will it survive? I’m not ready to predict. Clearly, the societal changes that Judge Walker identified, the inexorable erosion of the gendered boundaries that prescribed separate roles for men and women in the home and in the world, are the very changes that have animated the religious right for decades. Deep disquiet over those changes fueled the successful opposition to the Equal Rights Amendment in the 1970s and is a major part of what continues to make same-sex marriage a polarizing issue here even as other countries are managing to put the debate behind them in growing numbers. (Argentina’s Congress legalized same-sex marriage last month; it is legal as well in Canada, South Africa, Spain and six other European countries. The Mexican Supreme Court ruled this week that same-sex marriages performed in Mexico City, where they are legal, must be recognized as valid throughout the country.

In his passionate dissent seven years ago in the Supreme Court’s landmark gay rights case, Lawrence v. Texas, which decriminalized consensual sodomy, Justice Antonin Scalia complained that the majority had “largely signed onto the so-called homosexual agenda” and warned that the decision placed “on pretty shaky grounds” state laws limiting marriage to opposite-sex couples. That he prophesized such a result, indeed asserting that it was all but logically compelled by the majority’s analysis, of course does not mean that he will feel obliged to support it with his vote.

A Supreme Court showdown on same-sex marriage, if one comes, is probably at least 18 months away, further complicating prediction. The justices, or at least some of them, are likely to pay close attention to how the public responds, both to Judge Walker’s opinion and to the Court of Appeals decision that will come next. One early straw in the wind was a CNN poll last weekend, after the ruling, in which 52 percent of the respondents answered yes to the question, “Do you think gays and lesbians should have a constitutional right to get married and have their marriage recognized by law as valid?” According to Evan Wolfson, executive director of Freedom to Marry, this was the first time a national poll showed majority support for same-sex marriage.

Given that last week’s decision is most unlikely to be the last word, the real contribution of Judge Walker’s fact-filled opinion, and of the trial that preceded it, may be to enable a better informed public conversation. Knowledge can change perceptions, which in turn can change reality.

With Elena Kagan confirmed to the Supreme Court, and thoughts turning toward the opening of the court’s new term, the first with three women on the bench, I’m reminded of a play that opened at the Kennedy Center in Washington in late 1977 on its way to Broadway. It was “First Monday in October,” with a plot that turned on the appointment of a woman to the Supreme Court. The notion was regarded as inherently comic, and it was played for laughs. But the successful play propelled a once far-fetched idea into the popular culture. Meanwhile, a woman named Sandra Day O’Connor was sitting on an appellate court in Phoenix, hiding in plain sight.