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Prop 8 Trial: Two Sides, Two Definitions of "Change"


Just before midnight last Friday, both sides in California’s battle over Proposition 8 submitted their written cases to a federal judge. According to the San Francisco Chronicle, those in favor of the marriage ban argued that “Californians voted for Proposition 8 because they thought it would strengthen the institution of marriage (and) ... because they thought it would benefit children.” Those opposed to Prop 8 affirmed that legalizing same-sex marriage would be a step forward for children and the institution itself, not a step back.

The point both sides are hoping to prove essentially emerges from a shared assumption: that marriage holds the potential to be redefined. But while opponents of the ban claim that this is a good thing (During the trial, their witnesses included a few scholars who argued that marriage is a “historically evolving institution”), advocates maintain that “extending marriage to same-sex couples would result in a profound change to the definition, structure, and public meaning of marriage.”

The law scholar Martha Nussbaum recently told The Nation that legal and moral arguments for banning same-sex marriage -- especially those dealing with its “preservation” -- are flawed: nestled in a bed of bureaucratic discrimination. “We don't think that heterosexuals who are flaky, silly or awful, Britney Spears marrying on a whim and then divorcing almost immediately, we don't think that that taints the institution of heterosexual marriage,” she said. “By the same token, people do think that the marriage of two gay people of good character does taint the institution. We can't understand what's being said without going back to some kind of magical idea about stigma or taint.”

Undoubtedly, the trial’s developments support Nussbaum’s point. Four of the six witnesses scheduled to testify in favor of the ban were pulled at the start of the trial, reportedly fearing television coverage. And the diluted nature of the defense’s recent, written argument -- ‘gay marriage would not necessarily hurt marriage (there’s no way to prove that, especially given Britney as counter-evidence), but would indeed change it’ -- is an example of the cautious rhetorical wheedling that institutionalized bigotry requires.

Still, the ‘gay marriage will change straight marriage’ argument is most interesting for its reliance on the prejudices of those who interpret it. A discrimination alley-oop of sorts, it leaves the interpretation of “change” hanging in the air, waiting to be slam-dunked by people who are not held accountable by the protocols of a courtroom. This is in fact Prop 8's best shot at surviving: the vicarious cultivation of fear and misinformation.

In some ways, the issue boils down to a question of semantics. Marriage equality advocates want “change” to include them; they to be incorporated into an institution symbolic of complete citizenship. Opponents want to wield “change” as something foreboding and murky without clearly defining it.