So wrote Judge Vaughn Walker in his opinion in Perry v. Schwarzenegger, referring to the present institution of marriage in the United States. The wonderful Linda Greenhouse, ex-NYTimes Supreme Court reporter and current Yale Law professor, pointed us to this phrase in her recent column in the NYTimes, titled Hiding in Plain Sight.
Greenhouse wrote that the extraordinary attention that the press has given to the Walker decision in California led her to look up what the press’s initial reaction was to the Dallas District Court’s decision in Roe v. Wade. It seems that it was reported by the A.P. in a 251-word article that the NYTimes buried on p. 37 on June 17, 1970. The Texas law that was overturned had been passed in 1857 and prohibited all abortions except those to save a woman’s life. Greenhouse points out that the AP story contained this wild inaccuracy that no AP or Times editor had picked up.: [Here]
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.)
No one picked up the error and the story has been asleep in the Times archives until hawk-eyed Linda Greenhouse found it. The fact is that state legislatures at the time were slowly liberalizing their abortion laws. Greenhouse pointed out that the NYState legislature had just enacted a more sane abortion rights law a few months before by a one-vote margin. Perhaps, Greenhouse pointed out, editors and journalists didn’t pay attention to the Texas case because they didn’t see the role that the courts would eventually play in the issue, even though abortion legality was slowly being redefined right before everyone’s eyes. As Greenhouse said: [Here]
How often do we fail to recognize something, or someone, we don’t expect to see?
As for same-sex marriage, she points out that gay partners had applied for and been denied marriage licenses by courts throughout the second quarter of the twentieth century. Most folks, even those within the gay and lesbian community, were unaware of these moves. [Here]
The notion of legally sanctioned same-sex marriage seemed too far-fetched to ponder, until it didn’t.
Greenhouse believes that the smartest bit of reasoning among many smart thoughts in Judge Walker’s decision was his noting the change in society’s definition of gender roles in marriage. Greenhouse quoted this from Judge Walker’s decision:
Marriage between a man and a woman was traditionally organized based on presumptions of the division of labor along gender lines...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.
Greenhouse added that in his decision Walker also pointed to the reasoning in recent no fault divorce laws that “gender no longer forms an essential part of marriage; marriage under law is a union of equals.”
She concludes her brilliant essay by writing: [Here]
Judge Walker is saying basically that he is not “redefining marriage...We, collectively, in California and elsewhere in today’s United States, have done the job ourselves.Once again, we thank Linda Greenhouse for pointing us to a story that was "Hiding in Plain Sight."