Introduction, potential audience, why an ebook, writer's background, scope of subject

Introduction to this ebook*

This is a work in process, anyone who has come upon it, go ahead.  Not a secret, but if you are reading this caveat this is not a completed project.

This is an attempt to organize much previous writing, mostly on AlRodbell.blogspot.com,, that comes together now at the time of the  Obergefell decision on Marriage Equality of June 2015.   I'm writing this long form, a book, a monograph, however it turns out -- because it convey.

 No one else would do it, as the values of the West, the Occident have been transformed in such a short time that what I will be expressing will be seen as hate speech, verboten, taboo, or just plain non productive for most anyone to express the way I'm expressing it. I use the term "ebook" not technically, but sociologically, as implies it can be written by an individual outside of obtaining the support or approval of any of the nodes of authority that inherently

Here's the thrust, a way of expressing it inspired by Michael Foucaut,  The History of Sexuality Vol 1 (Deployment of Sexuality par. 4 -- pp100 pback ed)  I'll paraphrase:   He talks about rules of sexuality being not law, but the word he uses are discourse, conversation, that in the aggregate form a way of defining this powerful and transcendent human need. .  

"...we must conceive conversations as series of discontinuous segments whose tactical function is neither uniform or stable. It's not just acceptable or or excluded conversations or between the dominant and the dominated.  It is this distribution we must consider, who is speaking, his positions of power, the institutional context in which it happens to be situated, what this implies.  In like manner, silence and secrecy are shelter for power, anchoring its prohibitions.

I'm writing this paper only because within a short time, a few decades, there has been a sea change that defies any rational explanation.  This is represented by two words, "homophobe" and "faggot.", the latter was a term of contempt for homosexuals, while the former has become one of contempt for those who would not support the advancement of those embrace the homosexual culture.

The distortion of this conversation, from the mass media to the Supreme Court, is worthy of exploration, yet those in the academic disciplines that study these area choose not to address it, for reasons that are knowable, yet not able to be explored in our existing zeitgeist.  This is an ebook.  "book" because it encompasses an audacious scope, with the preface of "e" meaning more than "electronic" but that this format not requiring any institutional support,is freed from their inherent constraints.


It is rare, perhaps unique in modern history, that the cultural changes that happened to correspond with my own life time have been so extensive in the absence of change of regime by revolution or war.  My first memories were the ending of WWII,  specifically the celebration of VE day, Victory in Europe, in May of 1945, living in Washington D.C.  This was the capital of the victorious coalition against the fascist forces that happened to be part of the Jim Crow culture that was a continuation of the Civil War -- actually the retreat from the ideals of the victors of that conflict. 

This ebook is written seven decades after that event, corresponding with development of my own intellectual awareness from a childhood with no awareness of the world around me to one who has lived through and explored changes that were never even imagined by the vast majority of people in this country at the time of celebration of the victory over fascism.

The website is written on the occasion of the Obergefell decision mandating same sex marriage on June 2015.  I realize that any attempt to explore the decision's  meaning must go far beyond the specifics to issues seemingly unconnected but intertwined, as avoiding them will entangle this exposition into the very limitations it is written to disclose.
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In the short time from when I started to write this only six months ago,  there have been major changes in the world, the mass migration of refugees from Syria into Europe, and the rise of right wing resistance, which at the time of this writing at the beginning of 2016, includes the Donald Trump phenomenon.  How this will be integrated into this ebook remains to be seen.  

Anne Frank, Edward F.Green and Donald Trump

Anne Frank,  Edward F. Green and Donald Trump

This is a theoretical paper, but not in the sense of being for an academic audience.  I wrote it to drown out the deluge of  reporting on Donald Trump running for the Republican nomination for president.  In this country, he is mentioned in more newspaper articles than any other individual, as his latest statements take precedence over natural or geo-political activities that can affect, and destroy, the lives of thousands.  

He has been called a demagogue by those who are polite, and the reincarnation of Hitler, by those who hate him.  Well, he does have similarities to Hitler, but could it be the Hitler of 1932 who was offering hope for the restoration of dignity to his constituents, and was adored by the majority of Germans right until the tide of war turned?

Anne Frank, the other real human being of my trio, has become the face of hopeful innocence whose enduring persona only exists because of  Hitler and his legacy of evil of The Holocaust. Both Hitler and Trump represent a resolution of the tensions of their times, the understanding of which are diminished by the focus on the individual.  "Bigger than life" is a description of those whose actions and public perception do indeed obfuscate "life" meaning the mundane forces that have shaped the societies of such people.  This is the meaning of the saying, "if he didn't actually exist, we would have had to invent him."  Really, we did invent them or the mold for someone like the person who filled the role. .But while the drama is being played out, all we see is the person, now illuminated by a spotlight that throws vital background into darkness.  So in the midst of volatile times such as we are now living through, fiction allows a clearer view of the unfolding of actual events.. By chronicling them, influencing the course of history.   

As Abraham Lincoln purportedly said to the writer, of "Uncle Tom's Cabin," "so you are the little woman who wrote the book that started this great war."  Whether he said the words or not, the suffering of fictional Uncle Tom, and his wife and children, did contribute to the expansion of abolitionist sentiment, the driving force of succession and ultimately civil war.

Explanatory concepts of causality, although written by knowledgeable historians rarely affect the course of history. This brings me to Mr. Green, (whom I added a first and middle name for verisimilitude) justified by my infinitesimally small part in creating him. For this I must take a digression that began on a tennis court in 1995:

I played occasionally with a man on the Riverside courts in Manhattan, Jeff Baron, who one day asked if I would take a look at a draft a of his manuscript for a play.  I took it as a complement, since while only in his early thirties he had been a professional writer for a popular television show, this unlike so many in this city who have worked on screenplays or novels that have provided dreams of success that sustained their less rewarding occupations for their entire lives.

I read it, then once again with more care. In my three page analysis I complemented him on his vivid writing, and then wrote, "If you leave it as it is, it will surely be a success among gays, but if you want to go beyond this, you have to tone down your premise that rejection of homosexuality is tantamount to the Nazi genocide of Jews."

 Several years later, after the play, "Visiting Mr. Green" had been translated into 23 languages with 400  productions in 45 countries, at a reading by the star, Eli Wallach in the General Assembly building of the United Nations, I remarked that it had changed since its earliest tryout in a summer stock performance.  Jeff responded, "Al, did you think I hadn't paid attention to your criticism?"

Well, not too much attention. As this play that helped change the course of western values still conveyed the message that while rejecting homosexual orientation was similar to the Nazi's hatred of Jews, it was a benign defect for the individual, who, if having a good heart, could transcend their experiences to become accepting of those who are different.

"Visiting Mr. Green" and "Uncle Tom's Cabin" can be seen as energizing what had been a more limited movement.  Given how societies work, when enough individuals become motivated it is reflected in the political system, sometimes taking years; other times, as when the lifeless body of a single three year old was washed ashore on a beach, the most advanced federation of nations, the European Union, turned on a dime to open closed doors to  vast numbers of refugees.

This event of the last year can not be explained by rational thought, or quantitative economic interests, but only by forces previously not well articulated. However, just as the child's death opened the floodgates of sympathy that could have changed the demographic makeup of Europe, the fragility of this decision was illustrated by it being slammed shut only months afterwards; with the unfortunate effect of increased support for right wing extremist parties throughout the region.  
 
It is understanding of these forces, somewhat encapsulated by the word "zeitgeist"-- literally spirit of the times-- that must be raised above the cacophony of partisan sound bites if we are ever to understand and address the larger issues of our world.

I will explain exactly how to achieve this in the next installment!
                                                                                        (smiley face implied)

Have we saved the world yet? Intro

"The arc of history is long but bends towards justice."

What is the motivation for someone well past his prime, with no academic credentials, to presume to write something will answer the joking question of the 94 year old friend who hosts our post tennis group at McDonalds restaurant, "Have we saved the world, yet?"  
One explanation is that what I have to say has not been said, or if so very very quietly, and often in a tone that either actually, or by imputation, is seen as abnormal, meaning invidiously not of the norms of society.  Abnormal is only bad when the norms are promotive of consensually desired ends - and certainly not good when they prevent the kind of conversation that may redress the defects of any given society. 

   


I am writing this "book"  (you are reading an introduction) at a moment in history that augurs a flex-point in the "post holocaust era of redemption", a concept that hasn't become "a thing"; such as global warming that encompasses technology, demographics and politics at every level in all countries.  With global warming, there are melting glaciers and ancient temperature indications that allow objective analysis.  What I'm presenting is as real, but unlike the measure of temperature variation, the manifestations are amorphous, and have become so much part of the most rancorous aspects of the culture wars that they only exacerbate partisan antagonism, rather than advance investigation of the deeper dynamics. My task, well over my pay grade and talents, is audacious. Rightly to be left to academics if it weren't that this hallowed turf too has become part of the very phenomenon I'm articulating.  This will be the subject of its own chapter in my hypothetical book.    

This is why what I describe is not a blog article, or an essay, but structurally a "book"  or "thesis" meaning something that aspires to present a different perspective that must first describe elements that will be examined; this in order to make a case that there must be a larger conceptual context, a more useful paradigm to explain the cited phenomon. 

While the introduction to the first chapter could be entitled "when homosexuality became gay;" my "thesis" is more encompassing, as it must include the long and continuing movement to end Jim Crow domination of Blacks* in America of the mid twentieth century. The central impact to this country from the importation of African slaves is part of this thesis only because I argue, it, like the gay rights movement, although only a short half century old, are now both part of an unspoken western world mentality that fits a pattern that is perhaps as dangerous as the threat of climate change.   

 Another, is women's rights, especially the fight for access to abortions. The abortion issue is one of values, with no disagreement among advocates of the science of terminating a pregnancy, meaning the ending of life of an unborn human while still in the uterus either before or after the point of viability.  The two sides have taken agreed upon truths as their motto, as the act does entail both ending of "life" and the exercise of "choice."  The very names of the contending  political groups focus on one with the assumption that it negates the other, where it is actually the debate of which of these should gain legal-political ascendancy. 

Homosexuality and abortion, are different from race -- in the U.S. focusing around issues relating to Negros.  The very use of this "N-word" for many is the end of the conversation, as it is not consistent with the social norms that have evolved.  My contention is that these social norms obviate, make impossible, going beyond what has replaced racial, gender and sexual orientation stereotypes of the pre 1960 era-- to establishing an entire new taxonomy of terms. While replacing those terms that had the effect of insulting or denigrating people who were the object of invidious discrimination, over the decades they have elevated political discourse above scientific investigation.   .


 


 
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*I will use, when plausible, the earliest term and most precise term even when archaic or seen as a slur, such as homosexual for gay, or Negro for now current words, Blacks and African American, both terms inherently loaded by political movements. The purpose of this book is to understand why our society has discarded a neutral descriptor to one that reflects a political ideology, irrespective of how universally it has been adopted.  To clarify: "abortion" is subject to extensive debate often with their own terminology (liberals will never use "abortion on demand")without changing the word of the actual procedure. This will be explored in a separate chapter.

Obergefell Decision -Law, Love and Power -

Obergefell v. Hodges the Supreme Court decision that has made "marriage equality" the law of the land is now a week old, the celebrations have ended and new breaking stories fill the front pages of newspapers and start trending on twitter feeds.  The new headline is "Greece and the Euro." The decades long effort to unite the continent that had been both the fount of Western enlightenment and wars between nations and religions for millennia, is at risk.  The hope that a common currency would cement this region in spite of brutal conflicts still in living memory of decision makers is in danger of destruction, with unknown consequences to stability of the world.


To write on meaningful ongoing issues one inherently takes sides.  Sure, we can all condemn the slaughter of American Indians by those Europeans, often our own forebears, who occupied their land since it is dead history, with no active revanchist movement to return to the status quo ante.  Yet, when issues of the moment arise, thoughtful balanced analysis seems a cop out, a useless endeavor and worse -- as one must find an audience from one side or the other and connect with their passions.

Supreme Court decisions, while couched in the rarefied idiom of constitutional and procedural law  can productively be viewed from a different lens, as the values of the individual justices, whose decisions are formed by the most personal aspects of their lives, often forgotten experiences of childhood that never make it to the copious explanations of formal decisions.

This essay will explore this by comparing the recent Obergefell decision with first one on this issue by the  Massachusetts Supreme Court case Goodridge v. Dept. of Public Health of 2003. While both decisions expanded same sex marriage by a split 4-3 decision, the nature of the dissent could not have been more profoundly different.  Unlike Obergefell, written by conservatives who would end abortion along with the entire "progressive" agenda, the earlier Goodridge dissent was written by someone who is only a footnote in American legal history, Martha Sosman.  Unlike the conservative four who excoriated the majority for mandating same sex marriage for the country,  Sosman had been a board member of Planned Parenthood and used her incisive legal mind to advance causes dear to the heart of liberals in this country.

It so happens that Martha Sosman articulated views that I happen to share, then and now.  Shortly after that decision I wrote an essay, one that is more meaningful after the current decision, after twelve years of the profound political disputation of the "sanctioning" of the  most private of sexual relationships among people.  Sanctioning is correctly the only word to describe this change in law and values, as the root conveys the power of holy authority to both exalt and to condemn any action.  So the ambiguity of the word reflects the potency of the questions that had previously been decided by sacred authority of living Gods, but now by human beings deemed as "supreme" in cloistered chambers and black robes.

Addendum

There is this essay I wrote in 2005, a fantasy of an alternative history that is built around the real life story of the two women justices who had different positions on the Massachusetts case. On re-reading it after years, I understand both women, both legal and ethical views, even though they weren't expressed in the formal decisions. The long comment appending from Bill S. is from Bill Schurtman, with this biography:  He too was a scholar, meaning a love of knowledge that transcended his successful profession as a lawyer.  He graduated high in his class at Harvard in the late 50s, a classmate being Ralph Nader, and a mentee being Mike Dukakus, but in those days jobs in elite firms or clerk positions with justices mostly excluded Jews. He spent his earliest years in occupied Shanghai, with several interviews published about his experience. 


I wrote this essay  just after the Obergefell decision in 2015, looking at how marriage is more than laws that both limit and provide benefits, but part of a vast mythos that can be a balm to the agony of isolation, that we all want to both preserve and give to others.  Those who focus on preserving it are convinced that this expansion will destroy it, unlike those who want to share with all, no matter the genders. 









  

On June 26, 2015 the Supreme Court by a single vote in the case of Obergefell v. Hodges created a new landscape for the meaning of marriage in the United States.  We now look back on the time when this was defined not only by law, but by a cultural tradition reinforced over centuries of idealizing romantic love between a man and a woman.  Now, that is in the past;  this part of the culture war having been won by the progressive movement - for lack of a more accurate descriptor.  This means   consideration of the future no longer can be dismissed as an argument by conservatives to retain traditional marriage.  The war is over,  the issue is dealing with the new order.  

When two people married pre Obergefell because there was a universal ideal,  not defined by law, but by innumerable poems, songs, movies and novels,  decency demanded an assumption that the bride and the groom were marrying for some version of this ideal.  "Love" was the poetic expression, sexual satisfaction and common interests were the more prosaic elements of this idealized marriage, literally the merging of two into one.

Of course this was the myth, one not subject to accurate surveys of it's prevalence, but one that we went along with.  Over time, laws were enacted that attempted to eliminate those who blatantly  deviated from this general idealized institution.   If love was essential, and if marriage was an intimate merger then it must be between two people only,  so bigamy became universally criminalized.  In order that the love be between equals,  based on broader principles of family and clan,  every state limited the institution by consanguinity, degree of blood relationship.  All states prohibit first order relationships, and some second order, between close cousins.

We never did extend this promoting the ideal of marriage to age discrepancy, even though we still have a wide range of minimum ages among the various states.   But no state has ever defined maximum age differences between the two parties;  so a girl could marry a man three generations older without any legal hindrance.  Maybe love had something to do with it, but during the depression those with coveted civil war pensions found many young women whose love may have been for that  financial security more than their aged spouse. And, of course, pre-nuptual contracts and no-fault divorce are all deviations from the misty ideals of song and screen.

The Supreme Court can decide a case that earns landmark status, with the name of the plaintiff becoming immortalized in the decision, yet the consequences do not necessarily follow the instructions of the majority.   Brown v. Board of Education ostensibly ended school segregation over sixty years ago, yet, based on statistical analysis schools are  arguably more divided between blacks and whites than before that decision.  Segregation of schools is a product of our racial history and values,  with schools being only one component that is dependent on these elements that were not the essence of that 1954 decision.

I would offer that the current decision to legalize same sex marriage is about gender differences as reflected by culture, as such only minimally affected by laws. The broader consequences of this decision have never been part of the national discussion.  This Supreme Court decision was based on several simplistic memes that prevailed, like snippets of DNA taken out of the whole tell nothing about the nature of the organism.  

This essay is not a brief against same sex marriage, as this is now the law of the land, one that will not be reversed, nor am I convinced that it should be.  The arguments why the decision should have been different are stated clearly in the dissents.  In this post-Obergefell era, we can engage the meaning of this change of law in a way previously not possible when it was being contested -- and thus deeply politicized.  It was total war between the two sides, with language being the main order of battle.  This is now over, just like on August 15th 1945, Japs became Japanese, and previous enemies joined in a desire to go forward under the new state of affairs.  So too, on this day new norms must be addressed, new myths created, and like the end of WWII, the victors have as much investment in mutual accord as the losers.

As I described previously, marriage has long been quite different than the idealized myths accepted by many.  Yet,  sexual intimacy has long been a continuing element.  Only this institution provided religious and legal sanction for this otherwise sinful activity.   There still is one area where the validity of a marriage is subject to legal scrutiny that is based on the idealized myth of romantic love.  This is validating the "genuineness" of an emigre's  marriage to an American citizen.  Here's the description of the  process from one authoritative source on sham marriages for obtaining citizenship: 

What is the U.S. government’s view of a typical marriage? The statutes and regulations don’t go into detail on this, so the following comes from a combination of court cases and attorneys’ experiences. You certainly are not required to match every description on this list -- but the fewer you match, the greater the likelihood that you will face lots of questions and close scrutiny of your application.

The "normal" married couple has a fair amount in common. They share a language and religion. They live together and do things together, like take vacations, celebrate important events, birthdays, and holidays, join clubs or gyms, and have sex and children. Typical couples also combine financial and other aspects of their lives after marriage. They demonstrate their trust in one another by sharing bank and credit card accounts and ownership of property, such as cars and houses. They celebrate each others' birthdays and meet each others' families.

Now, post Obergefell, these assumptions become more problematic, as they are based on traditions that no longer apply- less so today than yesterday.  In reality they have not been universal for a long time, yet one aspect now stands out.  Is having a sexual relationship to remain an indication of legitimacy of marriage, and if so, should what had been the crime of sodomy between men until recently now become an activity to advance a goal of citizenship?  If we now simply exclude shared sexual activity from one of the elements of legitimacy of marriage, what is left other than affection perhaps, or any possible sets of "goods' that government chooses to legitimize. 

If one man has a high income, with a friend less wealthy who may even have dependents, should they be denied the legitimacy of a  marriage license as a door to citizenship?  Of course this would reduce income tax for the wealthy party, yet would this require the attributes of marriage, including sexual relations?  The assumptions that still serve the Immigration authorities are as vague to define marriage as Justice Stuart's "I'll know it when I see it" was to define pornography.  While the quip became famous, such a subjective definition has no legal meaning, opening the door to unlimited pornography.   But for those who feel this is more expansive freedom of expression, it came at a dire cost.  The penalty for even cartoon graphics of children performing these sexual acts is draconian for those convicted of mere possession.  The rage against pornography was simply displaced to the few who are prosecuted for enjoying this soletary sexual pleasure. 

There is another more serious issue that must be evaluated going forward.  This is the reality that sexual intercourse can be an act of love, but also a violent assault, with a stronger emotional damage when the latter - rape - is perpetrated on a man.  In fact, what is generally seen as acceptable "coming on to" by a man to a women, can be seen as a grave insult when the initiative is not welcomed.  At this point I will illustrate this with an obscene "joke."  (reader may want to skip the next paragraph)

Mel, a shy accountant, after one last bad decision in choice of lawyers, is sentenced to ten years in prison.  His new cellmate, Cleatus, a tough muscular killer, approaches him after a few days, saying,  "we should be like a family here, you and me."  Melvin is pleased that he's not the violent man he feared and agrees.  "O.K, Mel,  who do you want to be, the Mommy or the Daddy?"  Mel thinks for a bit, and says, "I'll be the Daddy."  Cleatus smiles and says, "O.K, Now you go down and suck off Mommy's dick !"

O.K., for those who wisely skipped the "joke" --  it illustrated a reality not rare among those who live a life of violence ending in incarceration.  While mostly ignoring this abuse, previous norms of antipathy towards seduction of one man by another have acted as a protection for those who are weaker - however defined.  The Obergefell decision, by implying that such overtures, irrespective of genders of the parties, are to be under the same rules, does not acknowledge the extent and harm of inter-male hostility, much less accept that such behavior evolved as an integral part of primate sexual dimorphism.  This complementarity of genders is a fact of amoral evolution, that has nothing to do with the revealed truth of God's word. 

If there is to be a celebration of this Supreme Court Decision it should not be cast as a defeat of "homophobes" -- an irrational epithet that has been part of the armamentarium used in this war to depict any opposition as a deplorable mental defect.  If this barely examined change in our central cultural myth is to be liberating, it can not be to the detriment of those who opposed this, who have been cowed by the current linguistic simplification worthy of Orwell:  Discrimination = bad,  Equality = good, Bigotry = evil. 

Let the winners, those who see gender, as they do race, as a social constructs having no biological reality, while enjoying this victory, return to their roots of rationality.  Males and females are different in ways that are verifiable from infancy to death,  but also in subtleties we don't fully understand, only some of which are social constructs.  Societies do form norms around these, some oppressive and others consistent with viable cultures.  This Obergefell decision is historic.  Yet, the cheering should be conditional on going beyond the victory.  Those who claim that the arc of history bends towards justice have no evidence for this being true, as over the course of civilizations it certainly has gone both ways - the direction only knowable in retrospect.  

This battle is over.  Marriage as an institution continues to be transformed as reflective of our larger culture --  sometimes for the better other times not.  War is ugly, whether fought with military weapons or vilification of the enemy, as sides must be taken, with those not with us being deemed against us

The greatest distortion of this entire movement that culminated in this Obergefell decision was that the only opposition was from benighted religious fundamentalists. This deflected the reality that this movement was a classic manifestation of the sociological phenomenon known as the Bandwagon Effect where an idea takes on a life of its own immune to any other perspectives.  Just as no high level law firm would make the case to the Supreme Court,  those in the learned social sciences with values built over centuries of objectivity were silenced by the sound of the cheering on the bandwagon for equality and justice.  None in this academic community chose to risk all by standing athwart this parade to yell "Stop!"

The decision called "Obergefell" has ended the battle but not the war.  It would be a mistake if the process of this victory becomes the norm for resolving social issues, with heated verbiage shutting out enlightened discourse.  Our country does not need another divisive wedge that is seen as vindication for one side based on a single vote majority of a non elected body.  The question not resolved or even addressed by this decision is whether this country shall descend into being shaped by sound bites or develop a mode of discussion based on candid open mutual respect.

This will determine which way this decision bends the arc of justice.



 Referenda

(1) The Rise, Fall and Continuing Uses of Adultery and Fornication Criminal Laws,
Dr. JoAnne Sweeny
 Loyola Law Review article circa 2014

Current article describes how laws ruled unconstitutional by inference, can remain in state codes.  This can affect cases such as allowing a landlord to refuse to rent to unmarried couple, but only on rare occasions.  These law peaked in the turn of the 20th century (pp153) 
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All hot links above can be include in this addenda.

Essay with alternative history of first state court decision allowing same sex marriage-

Original text (html not available) from 2005 is at this link  Margaret's choice-a fantasy

Margaret H. Marshall always had mixed feelings about being a judge. She loved the law, the dense interplay of statutes, precedent and values tightly argued. She could pick up each thread and follow each detail of any brief. She could usually have done a better job, so she would fill in the blanks of the lesser skilled advocates, when they were arguing a position she supported, that is. 

She had made it to the top of the heap in Massachusetts, from Harvard General Counsel, to associate and now as Chief Justice of the Supreme Judicial Court of the state. There was a downside to her position, that she could take no active part in politics. Margaret Marshall, not being active in politics, who would have believed it.

Her earliest memories from her native land where of politics; hard fought, life changing, revolutionary politics. All through school and then as president of the National Union of South African Students, she led anti-apartheid activities and protests amid threatening government opposition. It defined who she was and was to be.

In spite of variations among individuals, it usually turned out that the Right were the ones with the billy clubs who wanted to keep what they had, and the Left was trying to give the blacks, or the workers, or women an even break. She felt no guilt about being called a Liberal.

She loved her adopted country, and her great life. Married to Anthony Lewis, an older retired columnist of the New York Times and surrounded by the elite of Harvard, she was both challenged and revered. Having no children of her own, her concern for the oppressed seemed especially intense, as if infused with a maternal desire to take care of them.

Her reverence for the American legal system, as close as she came to a religious belief was shattered after the election of 2000. She watched the Republican goons close down the ballot counting in West Palm beach. She watched as each spokesman recited their talking points, repeating nonsense so often it drowned out real discussion. She carefully studied the legal arguments in each stage of litigation, up to the Florida Supreme Court, praying that justice would prevail over demagoguery.

This was why she entered law. It was politics of the mind. No violence, no pickets, no strikes; just the brightest people using the weapons of precedent, statutes and logic. She noted the words of the Florida constitution, “Notwithstanding any law or regulation, the manifest will of the voters will be the ultimate outcome to be achieved” There it was in the foundational charter of the state. All of the stupid errors because of defective equipment and botched butterfly ballots will be overruled, and the Democratic majority will prevail”

When the Bush people requested an emergency injunction from the Federal Supreme Court, none of the commentators took it seriously. How could they, this was a state issue. And if there were to be a contested slate, if the state courts and the Governor sent different electoral slates to the House of Representatives, the Constitution, which is almost always vague, gives specific rules for deciding which to accept.

And then that Friday, out of the blue, the word came down, The Supreme Court had enjoined the state of Florida from continuing counting the ballots. It was over. They scheduled hearings for Monday, but it would be too late. It had taken a massive effort to mobilize this recount project, and once dismantled it could not be restored in time. This was not a delay, it was a death knell.

She didn't know whether to laugh or to cry when she read the final decision. Scalia could make shit look like Foie Gras, but he couldn't get rid of the smell. She read Justice Stevens' summation, “We may never know who won this election but we know who lost, every judge in every courtroom in every state where justice is pursued.”

And then came 9-11. A few weeks afterward the New York Times editorialized that President Bush has achieved a new gravitas. Not to Margaret. She recognized the same arrogance of power, the same mixture of false patriotism mixed with religious fervor, the same threat against dissent that she had seen in South Africa as a child. But now she could do something about it. She could command a majority of her court that would send a message to the Republicans that they could not ignore.

Prohibition of Gay Marriage was the final stand of bigotry in America, and she had the ability abolish it in her state.. While others would have avoided this issue, she welcomed it. When it landed in her court in March, she took the lead in lining up support. The final decision had been written and she had the draft on her desk. Her husband, the Harvard crowd, all her friends would be proud.

She didn't care a bit about the anger from the right wing bigots who would attack her. But Martha's reaction still got to her. Martha Sosman had been her buddy from even before she got on the court. There was a bond, almost like high school best friends that belied their different backgrounds. There were a few cases where they were on opposite sides, but no biggies, just a jurisdictional dispute and a case of paternal rights. They actually gained more mutual respect for each other from them.

Martha had written her dissent on the Gay Marriage case with two justices concurring, but Margaret had her majority of four. They were solidly behind her decision and it would become law. And to underline her determination, the order for compliance would not be like Earl Warren's desegregation decision with compliance ordered, “In all deliberate speed.” but to be implemented in six months. The sound of her gavel was to be heard throughout the state and echo across the country. The legislators, the religious nuts, and the people in the state just better get used to it.

Now, the Martha that stood before her in her office was not the woman she knew. With a cold intensity she spoke, “Margaret, you are about to make a mistake, that you just may regret for the rest of your life.” “Now come on,” Margaret laughed, “What could happen, I'm going to get impeached.” “No, not a thing will happen to you, you will be the hero of Harvard Square, you will be written up in Harpers, and Spielberg may even make a movie of your life. You will be just fine, it's the country that will suffer.”

Margaret wasn't used to this. She was prepared for anger from the rabble, from the right wing media, but not for this. She was stunned as Martha, with a fire she had never seen, went on, “Your friends may all think you're a hero, but they don't make a majority, they don't elect congress, or presidents. Your friends are already hated by the people out there, and you are going to make them despised. Your husband, Anthony gets the same one vote with his Pulitzer prize as some poor slob with an eighth grade education.

They don't have much, those people who hate their jobs and struggle to get by. But they have a dream, from when they are little kids. They can have this identity, an identity as a husband, as a wife, something that transforms raw sex into something holy. It's all in that marriage ceremony. They are now Husband and Wife, all they have to do is say some wows and they belong. It's all pretty fragile with them, and you are going to break it right over their heads.

Martha stopped. She realized she had gone too far. Margaret composed herself and said, “But all that you say, all the good, all the comfort from being married, why can't everyone have it. Thats all I'm doing, giving this good thing to everybody.”

“It's just not going to work,” Martha responded. “Marriage is this magic device that turns passion into love, but it also does something else, it restricts and channels this passion. You can't touch Mommy in certain places, same with little sister, and something else that you learn, the rules for those like you, with the same genitals is different than the rules for the other sex. Forget the crap that the bible says sodomy is a sin. It's a sin because it breaks the rules. Not your rules, not my rules, but the rules of most of the poor souls out there. They have followed them, whether they like it or not. You will show them that they are all narrow minded bigots. They can't provide a steady living for their family,and if their kids get sick they may not even be able to take care of them. And you are destroying what little they have.”

Martha was exhausted, so now calmly she continued, “And they will show their appreciation. Those Right wing bastards will pounce on this and never let up, they will have permanent residence in the White House. They can take away their health care, make sure the rich get richer and the poor better damn well have their kids, whether they like it or not. You just don't know what you are doing. You just don't know...” With that, she turned and walked out the door.

Margaret tried to continue her work, but it was impossible. She was flushed, shaken. She told her secretary she had a headache and went home. She tried to talk to her husband about the conversation, but she couldn't. This was her best friend challenging her most basic beliefs. There was no one to talk to.

That night sleep would not come. Martha's words kept running through her head. Her answers to her, her logic, her well honed jurisprudence seemed hollow, like she was missing something. When revelry finally melted into dreams, there was no peace. She saw the crowds, shouting in unison, the signs, “Down with activist judges.” She saw the news bulletin on Fox News, the announcer with barely controlled glee saying, “The votes for those who came out to support the anti-Gay marriage amendments made the difference. George W. Bush has been re-elected President.”

Then there was this wood paneled room, Anton Scalia, no longer only with two buddies, now there were five, all in their robes with the confidence of absolute power. They had won the ultimate prize. The highest court of the land will be theirs for decades. It will be their God who will now be the final authority. Lives of the unborn, unwanted by parents, will be under His protection, as will the the aged who dearly want to be rid of their mortal coil. Tie their hands and let them await God's will, shall be the law of the land. The malformed, unloved and unwanted will be under Gods protection, right up to the time of birth, when neither God nor state will be any longer interested.

As Margaret watched, trapped in a dream more real than any reality, she heard a scream from somewhere, a terrible swelling moaning cry that finally broke through. Anthony had been shaking her for what seemed like minutes. Her heart pounding, she opened her eyes. It had all been a dream, but it seemed so real. She was a different person than the one who went to sleep only hours before.

The next day she called a conference of the court and said she had reconsidered her position on the case before them and required a postponement. In the next few weeks, she explained to each of the justices, with thoughtfulness and tact, that although she felt gay marriage is something to be desired, it should not be a decision of the judiciary, but rather of the elected representatives of the people.

Martha was the last person she spoke to. They tried to be professional, but couldn't. The tension was resolved in tears, followed by shared laughter, a release neither of them had known for many decades. The final opinion, written by the two of them, and unanimously endorsed by the court,was something new in the annals of law. The ideal of expansion of the right to marriage to all was endorsed, but so was the appreciation of what this would mean. The value, the vital function, of tradition was articulated outside of the idiom of religious absolutism. There was an affirmation of the proper role of the court, and what should be left for other branches of government, and other less definable processes of societal change.

Although scholarly and tightly written, the decision was widely and extensively quoted in the press. The reasoning made intuitive sense, and for once the people of the country felt connected to those who made their laws. Shortly afterwards, and little noticed, a web site was shut down. SaveTraditionalMarriage.org had simply stopped getting hits.

There were no referendums on Gay Marriage in November of 2004, so the turnout in key states was rather low. Perhaps that is why President Bush lost by 37 electoral votes.

Bio of Marshall

Actual Decision