Courtney Fraser, LSRJ Summer Intern (’15, University of California, Berkeley Law School)
The whole internet was an envelope this morning, and I did NOT want to open it. Like seeing the letter from your top-choice college come in with the mail and knowing it is either an acceptance or a rejection, I stared at my laptop in a state of quantum uncertainty. Google Chrome was Schrodinger’s SCOTUS ruling. After stress-drinking two cups of coffee, I braced myself. I double-clicked, scrolled through the headlines, and cried.
The explosion on Facebook was unbelievable. Since I’m my college mates’ resident “law student friend,” I found my name tagged in myriad status updates asking for clarification. Is DOMA dead? What is “standing”? Do we rejoice? I answered to the best of my ability (despite my admittedly tenuous grasp of civil procedure, but, really, whose head doesn’t Article III hurt?) and beamed. Yes. We do rejoice.
While I was hoping for a broader ruling in Hollingsworth, the fact is that today Californians can get married, while yesterday, many of them couldn’t. (Well, according to this guy, they could.) Plus, given that we got Kennedy on our side after all (this is the face I made when I saw that he wrote the Windsor opinion), I feel like the Supreme Court has typed some winking emoticons between the lines of Hollingsworth. Next time everyone has standing, I would be surprised if SCOTUS skirts the seven-state solution. And the victory re: DOMA is spectacular. As activists are quick to remind us, the war is far from over, but this is a battle we’ve won – and the spoils are many. I don’t need to talk about tax benefits for surviving spouses like Edie Windsor, or immigration protections for bi-national couples in queer-friendly states. These things are accepted as real, tangible rights that were being withheld from same-sex couples, and that state of affairs was accepted – five to four – as unacceptable. What I want to draw attention to is the semiotic victory we won in Windsor – because that seems to be what Scalia just can’t get over.
Sorry. I was a Linguistics major in college. “Semiotics” is how we make meaning out of symbols – it’s systems of communication, including language, that teach us to associate a thing with a message. Let’s say the “thing” is marriage – the word, the institution, and every iteration thereof being lived out by lawfully wedded couples. The “message” – until today – was that as far as the federal government was concerned, all of the pomp and circumstance our culture attaches to marriage (not to even mention the bundle of substantive rights) was only for straight people. The message was that queer couples were different, lesser, and excluded. We all knew that there were 1,138 actual rights that non-straight couples did not have – but the differences that were being encoded ceremonially, symbolically, and culturally were far more insidious. Semiotically, bias creeps in without us realizing it. Even people who hold no actively derogatory beliefs about LGBQ people would probably show some implicit discriminatory attitudes on this test (proceed to Sexuality IAT) because we were all inundated with messages of queer inferiority, bombarded by all sorts of things that hinted, stated, or screamed that we are not equal, and that’s just what happens. DOMA was one of those things. With its ruling today, the Supreme Court stopped the transmission of that cultural signal. Oh, there are others, still coming through loud and clear, but with the Constitution on our side, I at least feel vindicated.
Scalia doesn’t want us to have this satisfaction. First, in a fit of denial, he maintains that although the legislation’s purpose to defend traditional marriage is plain from its name, ” to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions.” From his analogy, it’s clear that Scalia at once views same-sex marriage as fundamentally separate (“other constitutions”) from opposite-sex marriage, and holds this view so entrenchedly that he doesn’t even see the problem with his framing. It’s not for want of an education in semiotics, though. He sharply perceives that
”[b]y formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has ‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples [citations omitted]. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy ‘help’ only to a member of this institution.”
So, he sees that Kennedy’s opinion provides a robust toolkit for re-framing the discussion in a way that will make it possible for us to talk about how laws privileging opposite-sex marriage are semiotic instruments of stigma and oppression – he just doesn’t like it.
According to Scalia, it’s not even the Court’s job “to say what the law is.” I – pardon my sass – dissent. By interpreting the law, a court precisely tells us what that law is, or what it isn’t. In that sense, jurisprudence is perhaps the premier tool for promoting social change through semiotics. A law is passed; a law is interpreted. While these are not “magic” guarantees that behavior will follow, there is something magical about performative language. A declaration that queer marriages stand equal to straight ones in federal eyes – or that a woman can get an abortion – or that a boss cannot grab an employee’s a** and get away with it – tells us that we’re right. That we don’t have to take the harassment, the stigmatization, the denial of rights anymore. Of course, it rarely works out so neatly in practice, but at least we know that we can stand up to our bullies, and Uncle Sam will stand behind us. So, tell me, Scalia – what part of Windsor is any different than what we were “owed”?
Amid other cheap shots in his scathing dissent, Scalia opines: “It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad.” After decades under the predominant cultural signaling that us queer folks are monsters, it’s frankly nice to see the tides change, and I have just one more thing to say. Scalia, shove it up your argle-bargle.