So, like, how do you guys, you know, do it?

There is a fetishization of difference that society engages in when it comes to queers. Stereotyping is just the tip of the iceberg. Underneath the faux-ironic, soul-numbing, pop-reactionary images of gay men being good at fashion and lesbians being good at sports lies the belief that Those People Are Just Different.

That iceberg ripped a new one in the now-ailing ship of Californian constitutional law just this month (hmm - has this metaphor gone too far?). October 5th saw the denial at the appellate court level of the right of same-sex couples to marry (or, to reframe, the right of all Californians to marry any person they choose, regardless of gender).

The court did not even see fit to subject the discriminatory state of affairs to any heightened scrutiny (which would require taking the government to task on its reasons for the law). The court would have had to do this if it had found marriage in this case to be a fundamental right. However, it did not.

Part of the reason the California Appellate Court gave for not considering marriage a fundamental right for same-sex couples is that marriage has always been between opposite sex couples:

Considering the importance of judicial restraint in this area, we must agree with appellants that, carefully described, the right at issue in these cases is the right to same-sex marriage, not simply marriage.

First of all, this is not true (there have been marriages between same-sex couples before). Second of all, it borders on saying that since a right has been denied to certain people for so long, those people never had that right (a sort of relinquishment of rights by adverse possession). Finally, it essentializes the difference between heterosexuals and homosexuals to the point that the same rights are somehow of a completely different nature when a homosexual asserts them (and are thus not fundamental). Under this analysis, "same-sex marriage" is sui generis, and so not "fundamental" in the right way.

The problem is that this sort of reasoning was already disavowed by the U.S. Supreme Court in Lawrence v. Texas? There are no such things as "homosexual rights" (assuming one buys into rights discourse, of course).

The Lawrence Court dismissed the ridiculously narrow definition of the right in Bowers v. Hardwick (which held that Georgia's sodomy statute was constitutional):

[R]espondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.

Contrast Justice Stevens' characterization of the issue in Bowers in his dissent (which the Court eventually adopted as part of its reasoning in Lawrence):

[M]ay a State totally prohibit [sodomy] by means of a neutral law applying without exception to all persons subject to its jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals?

To rephrase, Stevens recognized that a court must ask:

1) Is there a fundamental right generally (in that case, to consensual sodomy, in this case to marry)

2) Is there some reason inherent to the nature of the right that negates its fundamental nature when exercised in a particular way by a particular group? (this is not the same as whether the state has a compelling interest in restricting the right, despite its fundamental nature - that question comes later)

This "same-sex rights" shit is getting same-sex old.

This reminds me of a great quote in Kate Bornstein's My Gender Workbook from a transwoman whose femininity was challenged because she was smoking a "man's pipe". Her response:

I am a woman. This is my pipe. It is a woman's pipe.

Just one question today:

1) Are there contexts where when a queer person does something it's a queer thing and when a straight person does the same thing it's a straight thing?