The Dead Letter And The Word
The words on the page are a dead letter. They don’t do anything. They just sit there. The power of law is the power of an idea. It is not self-executing. It is executed by people, and it has the meaning they give it. That’s true of all words. They have the meaning we give them.
Marriage. It has only the meaning we give it. But, it has the meaning we give it.
The debate over marriage equality has moved immeasurably in the last decade. Howard Dean was, as Vermont’s Governor, required by the Supreme Court of the state to extend all the rights of marriage to all couples, in something called a civil union, and at the time, he received death threats. Now, marriage equality is a reality in a handful of states, and the rear-guard action of the waning forces of bigotry is to offer all the rights, but to keep the word for the het folks.
Since (as I have discussed before in other contexts) law is only what is actually executed, this solution just does not cut it. Even if we ignored (and we should not) the formalization of second-class status, the fact is that in practice, “all the rights but not the word” ends up being less than all the rights.
In Sonoma County, California, a couple of elderly gay men did all the right things, signed all the pieces of paper that were supposed to join their lives and afford them all the protections except the word. How did that work out?
One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.
Ignoring Clay’s significant role in Harold’s life, the county continued to treat Harold like he had no family and went to court seeking the power to make financial decisions on his behalf. Outrageously, the county represented to the judge that Clay was merely Harold’s “roommate.” The court denied their efforts, but did grant the county limited access to one of Harold’s bank accounts to pay for his care.
What happened next is even more chilling.
Without authority, without determining the value of Clay and Harold’s possessions accumulated over the course of their 20 years together or making any effort to determine which items belonged to whom, the county took everything Harold and Clay owned and auctioned off all of their belongings. Adding further insult to grave injury, the county removed Clay from his home and confined him to a nursing home against his will. The county workers then terminated Clay and Harold’s lease and surrendered the home they had shared for many years to the landlord.
The power of words is the power of an idea. Marriage, both for better and for worse, is a powerful idea. The stamp of marriage has done a lot to stuff people into little boxes that don’t always fit them, and the people who complain that stuffing more people into that box is not the way to go make a very solid point.
But I look at this from a different perspective; as a lawyer and something of a skeptic about law. Law is a dynamic process by which people interpret and effectuate the cold words. I wrote a while ago:
The law is a living, breathing animal. What the legislature passes, what appears in a book in black letters on a white page, is no more the law than the textbook is the lion. Law is a structure for adjudication. What the legislature passes that police won’t arrest for, prosecutors won’t prosecute and juries won’t convict is just a set of words on a page. The law is what happens – or as one lawyer friend puts it, “exercises of power and excuses therefor.”
Marriage is a word that stops people in their tracks — its invocation quite literally injects the idea of equality against the wills of many people. That’s why they fight it so hard. Whatever they tell themselves now, they can’t look at those words — “marriage”, “husband”, “wife”, “spouse”, and treat the same sex couples differently without everyone else, and probably themselves, knowing that they’re just bigots. I’ll go out on a limb here and say that the county lawyer who said to the judge that these partners of twenty years were just roommates would never, ever say that if they were married under the laws of California; that that lawyer would tell the supervisor, “I can’t do it and I won’t do it, I am not going in front of the disciplinary committee over this.” “Partner” didn’t mean anything to that lawyer. But marriage would.
h/t Jessica at Feministing