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Saturday, January 13, 2018

AT THE TOP OF THE STAIRS: LISTENING IN ON OBERGEFELL V. HODGES

By Valerie K. Lazarus,
B.A., race and gender studies, M.S., mass-media & education
BlogTalk personality, in propria persona U.S. family court custody litigant and researcher,
social networking engineer, former-mother, true sister and advocate

Come with me to the top of the stairs and listen! Mom and Dad are having a cocktail party and their friends from work are over; maybe we can learn some mysteries about their world. We can't see who's speaking, but if we're very quiet here in the shadow falling over the upstairs bannister, they won't see that we're up past bedtime.
This is how it feels to hear the audio of the Supreme Court argument on Obergefell v. Hodges, the case that legalized gay marriage.
A man can be heard saying, “First of all, there is not really time...it's been about ten years. Ten years is...this definition has been with us for millennia. It's very difficult to say, oh, well, we—we know better.”
At this, we look at each other, smirking. Eyebrows raised, fingers to our lips at the idea of grownups who “don't know better.”
A woman can be heard talking about something that happened 40 years ago and something else that happened 20 years ago, and our childish minds reel trying to imagine the passage of time, listening to adults try to fathom it as though they're children. If late night parties happen frequently at your house, you may have gotten good at gauging how many drinks the adults have had by the giddiness of their speech. This particular conversation is off-the-wall, and you and I take turns silently shifting into a more comfortable position so we can pay attention better.
The voyeurism of children is one of our most celebrated social customs. It's possible the only true American church is the movie theater, where we sit in the dark with strangers watching people discuss private things, acting like they don't know we're watching them. When the movie ends, we discuss it with friends and contemplate what happened when we're alone. Just like you and me sitting here at the top of the stairs, not children if you reckon by 10 years or 20 years or 40 years, but powerless spectators nonetheless pertaining to what these adults are discussing. Let's refocus:
Mom and Dad are attorneys at a lawfirm and all their friends are lawyers, too. They're playing a game, making up the rules as they go. A man's voice cuts in: “As far as I'm aware...there never was a nation or a culture that recognized marriage between two people of the same sex....” We look at each other, our eyes wide, stifling a giggle at this raunchy remark. Doesn't he remember Lot's wife who turned into a pillar of salt from Sunday school?
“I don't know what other societies assumed,” says a woman. Our eyes don't meet, but I imagine you're wondering what her social studies teacher taught her. A man bursts in: “Coverture was not—coverture was not a universal aspect of marriage around—around the world.” When adults stutter like that, it usually means they're lying.
An older woman explains, “marriage was a dominant and a subordinate relationship...the man decided where the couple would be domiciled, it was (the woman's) obligation to follow him.” You look nervously at me. When Dad decided to move, there was upheaval. It meant leaving the old house behind, being at a new school with no friends. Sometimes it means Dad leaves us behind, or we're left with unmet, unidentified needs.
What are all these lawyers doing in my living room talking about marriage, when their line of work is divorce? The lawyer gets the house and you get an apartment, or a bed at a homeless shelter! An older man bursts in: “do you know of any society...that permitted same sex marriage?”
This calls to mind a party my parents had when they thought we were asleep where some of their friends were dressed in leather and latex, playing games about who was dominant and who was subordinate. “Well, the—the issue, of course, is—is—is not whether there should be same-sex marriage, but who should decide the point.”
I hear someone else mention liberty and equality and I wonder who hasn't had a turn to wear the chains. Someone else says, “But did they have same-sex marriage in ancient Greece?” Maybe tonight they'll all dress up in togas...we look at each other, wondering if we're going to have to make a run for our bedrooms!
Another man says, “the opposite view has been the law everywhere for thousands of years,” and I think about the difference between divorce and annulment. Annulment has been seen as retroactive divorce, but attorneys play games with the passage of time, so divorce is more useful if a day is the same as a thousand years, because of “the latency question.” Latency concerns “conceal and transfer.” A divorce takes place after conceal and transfer, once biological children are present. An annulment is only possible when conceal and transfer is IMPOSSIBLE, due perhaps to the fact of the parties to the marriage being the same gender. The existence of annulment as a legal concept suggests that gay marriage has been around at least since the days of Sodom and Gomorrah from the Biblical book of Genesis. (Now, why wouldn't my highly-educated parents know that?)
Loud, raucous laughter emanates from the kitchen—one of Mom's friends just said, “what if there are four people, all consenting adults, two men and two women, who want to have a polygamous relationship? Let's say they're lawyers.” A woman staggers out of the kitchen lightly grasping a wineglass—I have to pull you back because you're leaning over the balcony in disbelief. She doesn't see you. She stumbles back into the kitchen for more booze. Have these people lost their minds? What would Child Protective Services say if they knew you and I were here in the house with these depraved individuals? Would CPS agents drag us off, concerned with our moral turpitude? Would they deem it in our best interest to be removed permanently from our home?
As a young adult, I worked briefly for traders at the Chicago Mercantile Exchange, where I learned about trading futures and options. Time becomes a financial instrument, making it possible to sell stock you haven't purchased yet and even wager on whether you or someone else will sell. I am drawn back to the silhouette of your childish face in the shadowy light at the top of the stairs. Will our futures be foreclosed on us?
Attorneys have an interest in divorce, but not annulment since divorce is pregnant with the possibility that the marriage will yield something of value: a child. 
“The State asserts that it has an interest in the—the stability that marriage provides for children,” says the man. He chooses his words carefully: marriage is a euphemism for estate. Miscegenation is not about race-mixing, it's about which one is the slave. White men conceived babies with Black women and kept the mulatto children in the house, but if the woman is White and the man is Black, who gets the estate? Likewise, the argument of whether abortion should be legal is moot because a rich girl's father will buy her an abortion whether she wants one or not, but women can't be allowed to buy their own abortions. Whoever heard of property owning property, or disposing of property? A woman's children don't belong to her. For the purposes of the Court, a same-sex couple and a same-sex household are the exact same thing, irrespective of sexual preference. The words love and marriage mean literally nothing to an attorney. The State wants to know who gets the property; the lawyers work it out.
After setting up new rules to determine who is the master and who is the slave in a same-sex divorce, the only legal concept left to be redefined by the Court is “who is a child?” Does age matter? We could still be considered dependents, even after 40 years have passed.
“If there's a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife?” What does access mean? We stare at each other as another man talks about gay and lesbian people and couples who starts choking while he repeats over and over, “Hundreds of thousands of children are being raised in same-sex households...” I find myself thinking of a sunny day and a game we played with a group of our friends where we took turns being the Witch, asking, “whose children are you?” Every game was a variation of tag and hide-and-seek, or a combination of both. The Witch in this particular game was always looking for her children!
“Marriage exists to solve a problem,” says someone else. “The marriage view...is that marriage is all about love and commitment...but the State doesn't have any interest in that. There are 73 million children in this country. If we redefine marriage from couples being bound to their biological children to those who believe it's all about emotion and commitment...even a one percent change is many, many children.” In the pit of my stomach, I'm waiting for a knock on the door from a CPS agent coming to take us away for research purposes so the choking man can tell the judge we live in a same-sex household somewhere. Maybe one where the two adults don't even WANT to be married because they're sisters or cousins. I reassure myself that I'm safe, as long as the lawyers in my living room are my Mom & Dad's friends.
The words of attorney John J. Bursch remain in my mind as I conclude this writing: “The States don't intend to bestow dignity.” For several Supreme Court Justices to rule same sex marriage as federal law is beside the point. No state is legally required to recognize a marriage license from any other state: they choose to follow “the celebration rule.” Ruth Bader Ginsburg pointed out, “A divorce with proper jurisdiction in one State must be recognized by every other State, but not the act of marriage.” Sonia Sotomayor then concluded “that a State can fail to recognize (a) birth certificate (issued in a state other than the one that granted the marriage license).”
Our jaws drop as we try to fathom how many children were born outside the state where their parents got married. “Whose children are you,” indeed. Suddenly, a man's agonizing cries can be heard. Maybe he's turning into a pillar of salt! “It was rather refreshing, actually,” says Scalia, to uproarious laughter. Turn me on, dead man.

For the audio of the argument in the Obergefell v. Hodges case, click on the link below:
For statistics on LGBT parenting, see link below:

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