Of Tipped Scales and Bloodied Swords

Wendy Davis - Cropped Banner

When I was in high school, an insightful classmate once told me “[Katherine], I’ve never met anyone who hates and loves politics as much as you do.” Those words were searchingly true, and I rediscovered their meaning yesterday. This week has been a roaring cavalcade of politics, with its thousand faces roiling in the sea of our nation’s soul. And my personal life, as ever, threaded a helix around the public politics we were all concerned with.

We witnessed the Supreme Court at its worst, and at its halting best – in the midst of a week where I was wracked by anxiety about the complexities of community. Having watched so many of my own people get cut down by the anger and unbridled rage of activists who were supposed to be on “their side,” my faith reached a crisis point. I wondered if I had become so jaded to rage-as-strategy that I had lost my fire.

Then Austin, Texas happened. A People’s Filibuster, and a state Senator named Wendy Davis who fought with vaporous and rusted constitutional tools to ensure that women’s right to control our bodies would not be infringed in her state. For nearly 11 hours, Davis stood and spoke—without being allowed to so much as lean forward on her desk, much less food, water, or bathroom breaks; one woman’s voice was going to block a bill that would’ve made it nigh on impossible for women in Texas to receive an abortion.

And when at last the Republicans succeeded in sundering Davis’ filibuster on a technicality, and all means available to the State Senate Democrats to delay the vote further had been utterly exhausted, another woman, Senator Van Der Putte, would strike a rhetorical homerun and inspire the people themselves to take up the charge of those final, frenetic ten minutes.

A magnificent fever swept the chamber and I realised in that moment that I loved righteous anger as much as I ever had. I praised and cheered these activists and these politicians as they sought to disrupt a charade of “order” and “decorum” that served only to silence women just long enough for our rights to be taken away. And in the end, it was the people who bought those precious four minutes that were necessary to ensure the heinous bill was not passed.

That was justice, and real democracy. An unjust order is no order at all, and all the shouting, screaming, cheering and jeering was necessary to end that unjust order.

It was catharsis, and tear-jerking hope rising from the Texas statehouse at a time when Madame Justice appeared to have long absconded from the Supreme Court, leaving an echoing silence punctuated only the water torture of ill-informed majority opinions. With their rulings on tribal sovereignty, workplace harassment, and most consequentially, Section 4 of the Voting Rights Act, we’d witnessed the long fever of the Supreme Court’s lust for negative liberty and pseudo-libertarian governance come to yet another painful climax. The actions of the many in Texas, contrasted to the legalistic dithering of one man—Justice Kennedy—were stark and instructive; a reminder of what form real democracy must sometimes take.

A Negative Charge

And now, at last, we have cause to celebrate, in theory, with these Supreme Court rulings on DOMA and Prop 8. As per usual, any discussion of same sex marriage will inspire the usual commentary and sniping between radicals and liberals—disagreeing about the enthroning of marriage as an issue at all.

But for those of us at the intersectional margins, we are in that paradoxical place of having the least to gain from these rulings and also being the most “spoken for” by some who claim to understand the intricacies of our issues. It’s a curious place. My right to marry and access partner benefits is wonderful to have—if a distant one. So much else must come first; I must have benefits to share with my partner, for one, and no law provides that I have a right to such things.

Simultaneously, however, it would be reductive to say—as some of my fellow activists have suggested—that the stark contrast between the Court’s VRA and DOMA rulings is entirely down to valuing “the gays” and devaluing people of colour. This is a misapprehension of “where we are” vis a vis the court’s views. It is worth remembering that John Roberts’ racism, expressed through his seething antipathy to all collective remedies to structural prejudice, is of a piece with the prejudice expressed in his ruling in favour of DOMA. Indeed, the Court’s conservatives were entirely consistent—they struck down Section 4 of the VRA and voted to keep DOMA; there was no split in their prejudices.

The keystone was one man, and one man alone: Justice Kennedy. If we wish to understand exactly why the Court ruled as it did, examining the very specific nature of Kennedy’s political philosophy will be necessary. To generalise and say “the Court” is racist but not homophobic is, to be frank, not reasonable. Or, put more finely, it is not nearly specific enough. It does not grapple with the nature of the Court’s prejudice, which remains quite catholic in its scope.

Justice Kennedy’s libertarian reasoning was entirely consistent, and consistent in its moral impoverishment, no less. DOMA was struck down by him less because it affected LGBTQ people and more because of the way in which the law was constructed, as a government intrusion that deliberately segregated marriages. The Voting Rights Act, by contrast, is legislation that is designed to level the playing field using the power of the federal government to empower a minority—it is this species of legislation, born of a radically democratic philosophy, that is anathema to Kennedy.

And thus we see why the Court—or more specifically Anthony Kennedy— ruled the way they did. DOMA was about a negative right—the right to have a marriage (whose terms are decided and agreed upon in other statutes, through other traditions) unmolested by government interference. Marriage is a pre-existing right, not a new one created by any legislation. Thus DOMA was an intrusion that the libertarian Anthony Kennedy understood to be one and so he ruled in favour of LGBTQ people.

Your daily reminder that Justice is a woman.
Your daily reminder that Justice is a woman.

But imagine if the law democratised marriage’s benefits. Imagine a law on basic income or universal healthcare. That entails a level of democratic freedom, positive freedom, that I would go so far as to call “hardmode” for liberty, and well beyond the understanding of men like Kennedy and the four conservative justices of the Court. Material conditions are required for freedom to exist, and there is no escaping that fact but in the vagaries of legal and ideological abstraction.

Were such an LGBTQ-focused law before Kennedy, a law that affirmed that reality and guaranteed the material basis of our freedom, one can be certain he’d have voted against it. It was serendipity that saw this landmark case about LGBTQ rights centre on a law that interfered with a negative right as opposed to creating a positive one. This negative charge was why Justice Kennedy voted to strike down Section 4 of the VRA– the two laws, DOMA and the VRA, could not have been constructed more differently. One interferes with LGBTQ folks’ negative rights, the other ensures an affirmative right through leveraging the power of the state on behalf of people of colour.

The rulings this week are neither schismatic nor contradictory: they betray a coherent legal consciousness on the part of the Court. Justice Kennedy and his four conservative colleagues are unable to understand informal power, and remain very lenient on formal power. Hence they have declared harassment between workers of equal standing to not be actionable—for the harassed the power is very real; for Kennedy and his colleagues, such harassment is invisible as abusive power because it does not map onto a titled hierarchy– the only thing they recognise as a power relationship.

Their worldview won’t see informal power, therefore it’s not there, so far as they are concerned.  Similarly, the Voting Rights Act: prejudice in the South does not look the way it did in 1964, it has become more subtle, more shy about naming itself if no less forthright in its impact–  therefore it must no longer exist, and any attempt to redress racial injustice in voting constitutes an unreasonable intrusion of federal power so far as the Court’s majority is concerned. The nature of their racism lies specifically in their inability and unwillingness to see structural prejudice, and thus support the idea that structural redress is necessary for certain citizens to exercise their Constitutional rights. This has been true for how they view women (see, the Lily Ledbetter case or their ruling against the women of WalMart, or indeed back in the late 90s when the Supreme Court weakened the Violence Against Women Act by removing its civil suit provision), and will also be true for how they deal with LGBTQ people. Their ruling on harassment, recall, would affect findings of any kind of prejudice—be it ableist, transphobic, homophobic, misogynist, xenophobic and so on.

But in the case of DOMA, Justice Kennedy could see inequality because here it was visible as an intrusion of government, the ultimate hierarchical power relationship, and thus open to the redress of his jurisprudential red pen. Consider the many cases where Kennedy has participated in the gutting of our rights and liberties, however. What links them? In each case, what was necessary to secure those rights was state intervention and redress. A victim of harassment depends on the levelling power of the criminal justice system to give her voice and standing against institutionally powerful abusers; a worker, consumer, or subordinate depends on a class-action lawsuit to band together with others and stand toe to toe with corporations; those who fight voting fraud depend on the mighty weight of the Federal Government to outweigh and immediately overrule the depredations of local officials; Native American tribal sovereignty depends on a Federal Government that honours treaties and respects the collective decisions and self-determination of tribal nations.

This is beyond the scope of what, on average, five justices on the Supreme Court are capable of seeing.

Overturning DOMA, on the other hand, necessitates less, not more government intrusion, and thus Kennedy found it palatable to do so. It is this legal accident, this sorry belching moment of classical liberalism, which has bequeathed to us this slate of rulings. There is nothing wrong with celebrating—for this outcome is indeed just; let no one question that. But it is worth remembering how and why we got this victory, and it has everything to do with the above distinction between positive and negative freedom.

Positive liberty is something that must often be fought for, something for which we cannot be meekly supine and subservient. Positive liberty was what was gained in the Texas Statehouse—not only freedom from government intrusion, but freedom to create justice, and to do so athwart Byzantine rules that were designed to preserve an “order” of iniquity.

Some Notes on the Merits of Thrown Rice

On a concluding note I should say a few things about marriage and being a trans woman of colour, because it is often in these cases that I must flash my identity like a passport demanded at border control. I’ve grown increasingly weary of doing so, and yet I feel it is a necessary preface to the fact that I must confess my growing irritation at white (sometimes cis, often male) activists who claim to speak for us on this question, as if my respective communities are monoliths in the face of social injustice.

We are not.

Marriage is neither the capitalist-cum-patriarchal Trojan Horse that some radicals imagine it to be, nor the harmless bastion of unproblematic love and joy that some same-sex marriage supporters imply it is. Same sex marriage should never have become the signature battle of the LGBTQ movement, but it has become fashionable in a no less pernicious way to treat same sex marriage as a marker of assimilation, selling out, and giving up. The people most harmed by that perspective are often those least able to defend themselves and with few other places to go, because the rich white cis queers in the suburbs will neither hear nor care about your critique—so that just leaves those closest to you, the poorer among us, the trans women, the people of colour. Heaven help them if they should smile about marriage.

In the process I’ve actually had to wince as I’ve watched trans and cis women of colour walk tightropes in discussions about their marriages, apologise for or mute their happiness—and supposedly in my name. Their reasons for marriage are complicated—there was the necessarily cold and practical element of it (shared insurance, lower taxes, et cetera), but there was also the bounteous joy at being able to call their union a “marriage,” and to make an open declaration of love to the world in a way that was societally intelligible.

Sean Brooks (left) and Steven (right) getting married in 2011. The striking down of DOMA has spared Steven from deportation-- a harsh reality faced by many of the clients at the non-profit I work with. Do they count in our assessment of whether or not this was a victory for LGBTQ people?
Sean Brooks (left) and Steven (right) getting married in 2011. The striking down of DOMA has spared Steven from deportation– a harsh reality faced by many of the community members and clients at the non-profit I work with. Do they count in our assessment of whether or not this was a victory for LGBTQ people?

It is no less worth recalling that this ruling has already helped some of the most vulnerable LGBTQ people in America, precisely those that we as radicals claim to be speaking for. It has a particularly felicitous and immediate effect on LGBTQ immigrants, for instance. They must also count in our assessment of this outcome, and to whitewash them by saying that the ruling is only for white cis suburban picket-fencers is equal parts mendacious and essentialising.

Intersectionality remains a challenge for us to understand, and if it has a core characteristic that can be summarised in brief, it is that intersectionality is where dogma goes to die.

As to marriage’s fundamental flaws as an institution and its deplorable history—I am a radical feminist; I’m well versed in the many problems of the “traditions” of marriage, well versed in its history as a ritual of transferring ownership of a woman from one man to another. But I’m also keen enough as a feminist to pay close attention to what women are doing with the tools given to us and the dramatic ways we remix the tapestries that our erstwhile male masters have painted for us. In other words, we do not always use institutions as intended, and it is disingenuous to compare the marriages of some of my sister friends to a Victorian Catholic marriage. It is, so far as I am concerned, a valid road to social justice to take an institution and rework it collectively, changing the meaning of it in the process. Often, the most enduring social changes happen in precisely this way.

All I can say is that if and when I get married, my father will not be “giving me away” and I long ago robbed my would-be white dress of any literal connotations of chastity.

But it is true that marriage has taken on vastly outsized importance as a political issue in our discourse about LGBTQ rights, and has irritatingly become the litmus test for gauging one’s “tolerance,” in spite of the fact that some of the most cissexist, racist people I have ever argued with were in favour of same sex marriage. It is, as I said earlier, a negative right—something that can be done without the intrusion of the state. Yet so much more is needed: housing for homeless LGBTQ youth, income for the same, real, lasting employment, meaningful and affirming healthcare access that is as self-directed as possible… these are the material conditions that must often exist in part or in whole before anything like marriage can be truly lived in and thrived in.

And I will say this: for the foreseeable future, it won’t be the Court that gets us there. We have every right to celebrate now—and every obligation to mourn loudly for what we have lost in the Voting Rights Act. But if there’s a lesson to be taken away from Austin today it’s that when politicians can take us no further, the rest is up to us.