Public Lecture - The Beatles in Miami

The Beatles’ White (Photograph) Album: Race, Class and Gender in Miami Beach, 1964

Professor Brian Ward (Northumbria University) 

Wednesday 9th December, 2015. Arts 2.01. 4pm

This event is free and open to all

This talk explores the circumstances surrounding the Beatles’ February 1964 visit to Miami, Florida, focusing on issues of race, class and gender. Whereas oceans of ink have been devoted to the story of the fab four’s triumphant arrival in New York and debut on the Ed Sullivan Show, relatively little attention has been paid to their second Sullivan Show appearance from Miami, or to their brief holiday in the Sunshine State – a state embroiled in the African American freedom struggle and beset by especially acute Cold War paranoia. Revisiting this trip, particularly its photographic archive – and even more particularly the images generated when the band met Muhammad Ali (then Cassius Clay) – the talk hopes to tease out some of the deeper historical and symbolic significances of the band’s first real encounter with the US South, while also paying due attention to the peculiarities of race relations in Miami-Dade County.

A former UEA undergraduate, Brian is a Professor in American Studies at Northumbria University. Previously, he held the Chair in American Studies at the University of Manchester (2006-2012), served as Head of the Department of History at the University of Florida (2000-2006), and taught at the Universities of Newcastle upon Tyne (1991-2000) and Durham (1990-91). He has published widely on the issues of race and popular culture in the United States, most recently the article, “Music, Musical Theater and the Imagined South in Interwar Britain,” Journal of Southern History, LXXX, 1 (2014), pp. 39-72 and the co-edited monograph, Creating and Consuming the American South (University Press of Florida, 2015).

Opinion: Why we need the SAAC - Mollie LeVeque

Last Wednesday afternoon, I was in the Hive collecting signatures for the Sexual Assault Awareness Campaign petition. To be precise, due to late buses and a labyrinthine post office queue, I managed to help for the last hour we had the booth. Even that was long enough to convince me - well, reaffirm to me - that we have a way to go before this issue's impact is seen for what it is, and not just here, but at virtually any other university campus. All around us, students were chatting, tapping at laptops, sipping mochas, and revising.

I marveled at the fact that few of them bothered to see what we were doing. While nobody was scathing about it, I was asked twice why "this" was important.

That question demonstrates why we need to challenge the prevalence of campus sexual assault. To change policies, we have to change the idea that it's a normal university experience. Confronting this normalization has been one goal of recent activist movements, films, and artworks in the US.

Despite progressive shifts in policy and practice often instigated by students, though, a culture of acceptance remains in the states and here in the UK. There are worrying reminders that it's all still trivialized. Dismissed.

Just head to Google and run a search remotely connected to the topic. (Be careful.) Take the clickbait title Oops, I Guess I Just Raped Emma Sulkowicz, which can't be regarded as appropriate or clever in any context. It's in reference to "Ceci n'est pas un viol," a sex-tape performance piece that Sulkowicz posted online this past summer.

Her introductory text says, "Please, don't participate in my rape. Watch kindly."

Cynicism aside - the SAAC petition is important. I have a laundry list of Anglo-American reasons. It’s important because when I introduced Sulkowicz’s "Carry That Weight" to seminar students last fall, women did not participate in the discussion. (Then, the main question was whether I thought she was lying.) It’s important because a National Union of Students study shows that one in seven woman-identifying students experience sexual assault. It’s important because I overhear conversations about how getting groped - or raped - in a club is normal. It’s important because the concept of consent is so poorly comprehended that a lack of "no" is regarded as a "yes." It's important because people still believe that a rapist will look "bad" - as though predictive qualities are written on one's person.

I could keep going, but I'll stop with this: logically, students, and by extension, staff, know someone who has been sexually assaulted, whether or not that person is open about it.

Maybe they've been a victim themselves. Likewise, they know rapists.

Problematically, because of how people are often treated when they come forward about being sexually assaulted, the numbers we have only come from those who decide to disclose. Pair that with the tendency to underreport sexual assault through official channels, and we've only hit the proverbial tip of the iceberg. Silence and shame won't help. We do have an endemic, as evidenced by the NUS study and surveys conducted in the US. For example, a recently released survey of 150,000 students at 27 American universities revealed that one in five “female undergrads” were victims of sexual assault.

Clearly, then, the issue is not the fault of individual universities. Rather, it is an underlying, poisonous problem in higher education. Overall, avoiding discussions of sexual assault or consent only helps perpetrators. Victims do not benefit from any ambiguity in policies, procedures, or official stances. UEA can set an admirable example by being proactive, and I hope it will.

"Be Careful What You Wish For": Jonathan Franzen at UEA Literary Festival by Westley Barnes

         

Jonathan Franzen-like many fine American novelists before him-is a writer typified by an impassioned derision for our media obsessed society and a cruel, uncompromising love for a single artform-literature. He is a writer constantly at war with the reception, positive or negative, of his own work. Writing about what he perceived to be a misunderstanding of the ambitions intended regarding the writing of his breakthrough third novel The Corrections in a Harper’s essay (“Perchance To Dream”, 1996) In the essay Franzen described how during the period that followed the writing his second novel Strong Motion (1992) how he was “succumbing, as a novelist, to despair about the possibility of connecting the personal and the social” (Franzen, 1996, 2002, 58.)-a trait Franzen emphasised as considerably lacking in 1990’s US fiction. When interviewers asked in reference to the Harper’s essay if The Corrections was Franzen’s attempt to bridge the write the great crossover social/personal novel that he so lamented the lack of in “Perchance To Dream”, Franzen instead accused his critics of inventing an ideological ambition that he claimed was neither apparent in the essay or his novel. Franzen went so far as to rewrite the original article with a comic tone when he included it in his 2002 collection How To Be Alone, even renaming the piece, as if the overarching sense of critical malaise in the original wasn’t enough- “Why Bother?” The explanation Franzen gave for this re-imagining of his essay wasn’t a desire to silence and mock the critics who took him up on the piece’s suggested literary call to arms, instead he claimed in How To Be Alone’s introduction that on re-reading the essay he simply could scarcely understand what it was he had tried to say in the piece, therefore he had clearly changed his mind on whatever the matter was-so he might as well have some fun with it, after that ordeal.

As prickly as Franzen’s critical reputation purports him to be, how he presents himself to his assembled public is a striking example of his canniness-the seeming misunderstood public Franzen acting like a real life version of many of his misunderstood fictional creations (see Chip Lambert in The Corrections, Purity “Pip” Tyler in Purity- One assumes the alliterative forenames are merely incidental.)  Sitting watching Franzen hold court in Lecture Theatre 1 during his interview with Professor Christopher Bigsby I’m struck by how unlike his authorial persona Franzen appears in public. Ever-smiling a boy-scout smile, sprightly and irreverent as he skirts across the stage to read from his latest novel Purity-Franzen cuts the figure of a much younger writer-one sheltered from all the critical expectations, personal upset and death that his literary output is so equally informed and maligned by. (Franzen witnessed his father’s mental demise before his death in the mid-2000s, a loss that heavily informed the melancholy apparent in his 2006 memoir The Discomfort Zone. A few years later he scattered the ashes of his famous friend and literary confidant, David Foster Wallace, off an island in the south pacific.) What makes his joviality and seeming approachability such a surprise is that Franzen-ever outspoken yet ever conservative, recently divulged in an interview with The Guardian that he has determined a need to self-censor when speaking of his new novel, “I’m trying to figure out how much I should say and how much I should not say.” (Franzen, The Guardian,2015.) This air of authorial concern over opinions of his own work strike a contrast with the favoured beau of American letters image he constructs onstage at UEA-but again if any author knows all too well about the pitfalls incurred by his own contrarianism it’s Franzen.

The interview opens with a quip from Dr Bigsby about how although Franzen is no stranger to Norwich and UEA he’s much rather be off birdwatching in Clyde. Franzen is a keen birdwatcher-of course, he is an oogler of solitary states, and what a more perfect hobbies for a solitarist other than literature and birdwatching? Franzen graciously accepts that he is fond of Norwich, which he calls a “great city of readers.”

The first topic up for discussion is The Kraus Project-by Franzen’s own rather immediate admission “a strange book” -one written about the time he spent in Berlin during the early 1980’s translating the “often woefully untranslatable” critical work of the Frankfurt school linguistic theorist Karl Kraus, as part of a Fulbright scholarship. Franzen described how he spent most of his time in Berlin smoking, translating, not sleeping-the only English language book he brought in his luggage was Thomas Pynchon’s Gravity’s Rainbow (1973) a novel highly preoccupied for arguing for the saviour of morality in a world cast over with chaos, an anecdote that could describe much of Franzen’s fiction. This thematic concern, and the fact that the novel at 760 pages is long enough to intimidate the casual reader clearly made an impression on Franzen, whose character driven tomes consecutively stretch past the 600 mark. (A devotee to the ironist vignette, one could argue that Franzen’s novels are the longest New Yorker stories ever published) On the strangeness of Kraus and of his own time in Berlin, Franzen suffices to say that the project came to fruition (or didn’t, until much later, depending on how you view the twenty-plus years of rewrites and reconsiderations the book went through before the book’s eventual 2013 publication) during a period of intense solitude and personal confusion. “Berlin didn’t help” is the crux of Franzen’s analysis of this era, the ever-partying city’s more decadent and work-stifling attractions offering little to improve on Franzen’s deification of literary solitude.

Franzen asserted that the most positive aspect of his time in Berlin arose not out of writing The Kraus Project but instead out of writing long letters home to his then fiancée. Literary ambitions, it’s ideals and the argument for its’ validation was the topic that Franzen exhausted in his letters home, and provided Franzen with a set of literary ethics that have held firm with him throughout his fiction and criticism.

Soon after Franzen the entertainer is in full effect, reading from Purity-a novel holds firm on familiar Franzen territory-finding the sincere in complex, often disillusioned characters, and the pains associated with wanting to remain part of a dysfunctional family. Franzen alerts his audience to the dilemma of Purity “Pip” Tyler-

“The problem was, as Pip saw it-the essence of the handicap she lived with; the presumable cause of inability to be effective at anything- was that she loved her mother.” (Franzen, 2015, 5.)

Personal imperfections and the desire to have these recognised and accepted is a theme which haunts Franzen’s fiction. Pip’s mothers’ incapability to live a routine-driven life without her daughter’s interactions and reassurances both drives the emotional wedge between them and keeps them so inseparable The dependencies of familial relationships are Franzen’s reliable bedfellows-often his writing is an expansive rendering of the intensely personal-as if his character’s failure to live outside their personal relationships is what define them as morally sound in a confused world. A world evidently more preoccupied with the expanse of technology which Franzen so vocally despises in his personal essays.

The main contrast with Franzen’s previous fiction is that with Purity, Franzen has gone public with breaking his own rules. After a short reading of a later episode in the novel, set in a highly industrialized Texas cityscape with characters engaged in a conversation which actually implies the existence of the internet-fresh ground for Franzen-the author opens the floor to questions from the audience-an exercise he heartily claims to enjoy. An audience member asks why Franzen chose to commit an entire section of the novel to a character who writes in the first person, the contrast here being that Purity and the rest of Franzen’s fiction is strictly written in the third. The audience member had referred in his question to the advice given by Franzen in his contribution to The Guardian’s “Ten Rules Fror Writers” series-specifically Franzen’s rule number 4-“Write in the third person-unless a really distinctive first person voice offers itself-irresistibly.” (Franzen, 2010.) For his response, Franzen good naturedly concedes that in Purity he has broken his own rule-much to the delight of his audience. This own admission of an act of apparent rebellion against his own literary conservatism seems to allow that Franzen concedes to defeat against his own stringent set of literary guidelines-if only to please his audience members, it is an admirable act of self-deprecation. Franzen asserts that the character of Andreas Wolff, a Julian Assange-like internet freedom of information fighter (who Franzen in his response termed to be “handsome in a particularly German type of way”-with further self-effacing omniscience) seemed to him to be the perfect type of candidate for the first-person narrative mode precisely because he was so untypical of his fictional male characters. “Although”-Franzen added, “the third person narrative is still the truest, I find, particularly for a young writer trying to find their voice.” This practice of detachment from autobiography evident in Franzen’s fondness for third person narratives acts a helpful synopsis  of his fiction’s meandering character trajectories-Franzen finds excitement in the otherness of his character’s diverse , but interlinked, frustrations.

Having decided on a question of my own, I dutifully raised my hand in the ensuing silence which had followed the previous question. Never someone particularly keen on public speaking, I nevertheless routinely try when at readings to ask an author a question specific to a thematic concern I find in the their work-if anything to relieve either my own persistent curiosity or self-doubt. The lecture hall is without audience microphones, so asking if I can be heard I plunge into the depths of my literary unknowing. My question: “When reading your memoir The Discomfort Zone-I got the sense of a nostalgia for the mid-century mid-west where your parents lived their lives and brought you up, despite this being an era of political ambitions that you would later critically re-examine. This inherent nostalgia evident in your memoir seemed to explain for me the sense of contemporary dread that is often the narrative focus of the characters in your novels. Could you comment on this?”

My question referred to a distinctive passage in The Discomfort Zone, which described a sense of politically indifferent homely idealism-having grown up in St Louis, Missouri during the 1960s and 1970s, Franzen experienced life in a confident United States that was soon to lose a sense of social progression. The ending of the United States’ postwar dynamism was simultaneous with that of Franzen’s coming of age, a simultaneity acutely evident to Franzen:

“To liberals, the mid-century was a time of unexamined materialism at home, unabashed imperialism abroad, the denial of opportunity to women and minorities, the rape of the environment and the malign hegemony of themilitary-industrial complex. To conservatives, it was an era of collapsing cultural traditions and of bloated federal government and confiscatory tax rates and solipsistic welfare and retirement schemes. In the middle of the middle though, there was nothing but family and house and church and school and work. I was cocooned in cocoons that were themselves cocoons.” (Franzen, 2006, 15.)   

Before responding to my question, Franzen seemed to be a little suspicious regarding what I had asked him-which worried me a little because I had wanted to base my question on what I thought was an obvious thematic concern rather than a controversial means of catching the author out. By this stage, I had yet to read The Guardian interview where Franzen erred himself to caution on the subject of interviews regarding his work, but his initial response makes more sense to me now. He responded that although he understood where my question emerged from, that he didn’t consider his perception of his Midwest upbringing as one of nostalgia, particularly seeing how hard his parents had worked with regards upholding their Midwestern principles of honest work and being “good Americans” hadn’t seemed to stand to them all that much later in life. Franzen concluded that he was more interested in living in the present and anticipating what the future had in store for the US rather than focusing on the innocence of the past. This isn’t an easy conviction to analyse out of my own reading of Franzen’s fiction, but let the author speak.

For all of the evening’s good humoured grace on Franzen’s part, the next audience question sparked signs of the prickliness that Franzen’s own protectiveness regarding the critical reaction of his work that has been resoundingly commented on in the past. A woman in the audience brought up a 2015 Guardian review of Franzen by Curtis Sittenfeld-a review which praised the novel’s composition and ambitiousness but nevertheless criticized Franzen as an authour whose “portrayal of women lacks nuance.” (Sittenfeld, The Guardian, 2015.) While the audience member stated that although she didn’t entirely agree with the Sittenfeld review she would be interested in Franzen’s response to it-Franzen seemed to fly off the handle a little-which, for a writer as eruditely polite as Franzen isn’t so much a hissyfit as a momentary blip. “I can’t help being white, as I’ve stated before” Franzen replied. “But what strikes me so curiously is that I am the author of The Twenty-Seventh City who has a female cop effectively running St Louis and in the author who in Strong Motion has a woman as the figure of power.” A critical feminist reaction to his work is one thing that Franzen openly claims not to understand, and it is a little disappointing to see a writer of such international standing not successfully playing down these issues with a manner of reflective cool. The conservative in Franzen is shown most transparently here-a writer who responds to a misunderstanding of his work with a sense of self-righteous rage.

At the booksigning afterwards, I apologised to Franzen for any obtuseness or lack of clarity regarding my question, but the author warmly suggests that I needn’t apologise, he knew what I was getting at. “To conclude my answer more succinctly” offers Franzen with that boy-scout grin and an extended hand “is be careful what you wish for.”

Works Cited

Brookes, Emma “There is No Way to Make Myself Not Male” : Jonathan Franzen 
Interview in The Guardian 21st September 2015
http://www.theguardian.com/global/2015/aug/21/jonathan-franzen-purity-interview
Franzen, Jonathan  The Discomfort Zone: A Personal History New York: Picador, 2006.
-Purity London: 4th Estate, 2015.
-“ Why Bother?” in How To Be Alone London:HarperPerennial 2007.
Originally published as “Perchance to Dream: In The Age of Images,
a Reason to Write Novels” in Harpers, April 1996.
http://harpers.org/archive/1996/04/perchance-to-dream/
-“Ten Rules For Writing Fiction” in The Guardian 20/02/2010                                                 
Sittenfeld, Curtis -“Purity by Jonathan Franzen Review: Dazzling, Hilarious and
Problematic” in The Guardian 26th September 2015
http://www.theguardian.com/books/2015/aug/26/purity-by-jonathan-franzen-review

Westley Barnes is a first-year PhD student in American Studies at the University of East Anglia.

UEA Press Release: Expert View on Gun Control in the US

Dr. Emma Long on the history and politics of US gun control in the aftermath of last week's shooting at Umpqua Community College in Oregon. Dr. Long concludes that, "People will mourn he loss of life in Umpqua, as they have done after every mass shooting event in recent history, but no one should realistically expect anything to change." For Emma's full press release click here.

Event: Radical Women in the Black Freedom Struggle – Black History Month 2015

Wednesday 7th October - Vernon Castle Room, Norwich Millennium Library, 5:30-7:30pm
Free and open to all. Part of Norwich and Norfolk Black History Month.

Dr. Becky Fraser and Dr. Nick Grant (UEA) examine the invaluable contribution women made to the black freedom struggle in both the United States and South Africa. Facing race, class and gender discrimination, black women have often been at the forefront of movements for social change and have worked tirelessly for both racial equality and women’s rights. This session will explore these issues through the lives of Sojourner Truth and Lilian Ngoyi. Sojourner Truth was a former African American slave turned radical abolitionist, who later campaigned for black female suffrage in the mid-nineteenth century. Lilian Masediba Ngoyi was a South African anti-apartheid activist and prominent member of the African National Congress Women’s League and Federation of South African Women. She was a defiant voice in South African politics and lead black women’s opposition to the extensions of apartheid pass laws to women. 

American Studies Research Seminar Series 2015

All welcome! With thanks to the US Embassy in London and the 2AD Memorial Library.

The Colonel Charles L Walker Scholarship

We are very pleased to report that last week saw the inaugural presentation of the Colonel Charles L Walker Scholarship. The recipient was Kate Feenstra, a second-year American Studies student. Group Captain Richard Middleton RAF (retd), Chairman of the 2nd Air Division Memorial Library Trust, presented the scholarship on behalf of the family of Chuck Walker, who have generously endowed the scholarship in perpetuity.

Deeply impressed by UEA’s American Studies department, Chuck Walker instituted his award in 2013 following one of his many personal visits to Norwich.

A member of the 2nd Air Division United States Army Air Force based in Norfolk and in Suffolk during the 1940’s, Lt Col Walker flew 35 missions over occupied Europe, winning the Distinguished Flying Cross and the Croix de Guerre.  He went on to serve in the Korean War and in the US Air Force’s Logistics Command in Greece and France until, in 1967, he retired a Lt. Colonel. Post retirement, Chuck Walker became a leading member of the 2nd Air Division Association and a great supporter and the 2nd Air Division Memorial Library. He was also a Trustee of the 2nd Air Division Memorial Trust right up until his death.              
    
Kate Feenstra will shortly be taking advantage of UEA’s Study Abroad Programme to study at the prestigious University of California’s Berkeley Campus with the added benefit of a £2000 award from the Col Charles Walker Scholarship. Receiving the award thanks to her outstanding academic achievement, Kate said, “It really is an honour. The more I learn about Colonel Walker’s life and family, the more privileged I feel in receiving the grant.”

The Memorial Library Trust and the American Studies department at UEA have collaborated increasingly through events held at the Memorial Library – itself established by the American airmen stationed amongst the community in Norfolk and Suffolk during World War II in memory of 6,881 of their colleagues who were killed in action. Gp Capt Middleton said “I think meeting the young people at the UEA reminded Chuck that he was about their age when he was flying from Tibenham in 1944. The fact that the Memorial Library meant so much to Chuck 70 years after the event is an example of the impact their short stay in Norfolk had on the lives of those brave young Americans.  Chuck would have loved to have met Kate and encourage her on her way.”

Dr. Emma Long - The Supreme Court and Same-Sex Marriage II

Some More Thoughts on Obergefell v. Hodges

UEA's Dr. Emma Long second piston the recent Supreme Court rulings on same-sex marriage. You can find the first post here.

Much has been written and said about the Supreme Court’s ruling in Obergefell v. Hodges since it was handed down a month ago.  As with any issue of similar controversy, the commentary has reflected both support for and criticism of the Court’s actions.  Perhaps because of both the relatively recent nature of the case and the fact that many with strong views submitted so-called amicus (“friend of the court”) briefs to the Supreme Court expressing their views, many of debates thus far have reflected views offered by the Justices in their various opinions.  In this post, I want to consider some of the most common criticisms of the holding that same-sex marriage is protected by the US Constitution.

Politics

In dissent, Justice Antonin Scalia called the Court’s opinion “a threat to American democracy” (p.1).  He also argued that it violated the principle of self-government established by the American Revolution and the Declaration of Independence.  In one form or another all four of the dissenting Justices (Scalia, John Roberts, Clarence Thomas, and Samuel Alito) expressed the view that the democratic process had been circumvented or ignored, an argument that has been repeated by commentators critical of the ruling.  This criticism has several different components: the Justices of the Court have exceeded their authority, rights are better obtained through the political process, and the decision undermines the traditional power of states.

As discussed in my previous post, the argument about judicial overreach rests heavily on the view that permitting same-sex marriage created a new right, rather than simply granting access to an existing right for groups who had previously been excluded.  Liberals who support the ruling have been far less likely to see judicial overreach than conservatives who object to same-sex marriage (just as, for example, liberals decried the Court’s 2013 decision overturning portions of the Voting Rights Act as judicial overreach, while many conservatives supported it).  Personal views about the result in the case are likely to have a significant impact on whether individuals see the Court as acting within or outside of its bounds.

In a widely quoted passage from his dissent, Chief Justice Roberts argued that the Court’s decision denied same-sex marriage advocates “the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause” (p.27).  Debates about same-sex marriage had occurred in all 50 states in recent years; in some states same-sex marriage advocates had won, in others they had lost.  This is how democracy should work, according to this argument, not by having five unelected judges impose a point of view on the entire nation.  Acceptance is better achieved by convincing your opponents of the rightness of your view, not by enforcing it upon them.  This is, however, a simplistic view of both the reality of the situation in many states and the Court’s general approach to protecting individual rights. 

As Justice Anthony Kennedy pointed out for the majority, many states passed constitutional amendments barring same-sex marriage.  Constitutional amendments are by design much harder to overturn than ordinary legislation, a fact that clearly motivated the provisions in many states: opponents of same-sex marriage wanted it to be harder to overturn their traditional view of marriage.  Thus same-sex marriage advocates were, in the view of Kennedy and others, virtually shut out of the democratic process because it would take extraordinary political debate to overturn a constitutional amendment.  In addition, while such amendments were, in most cases, supported by majorities of the state population, in many instances the debate surrounding the passage of those amendments included clear instances of anti-gay sentiment (this is not to say that everyone who opposed same-sex marriage held these views, only that the debates broadly were tainted as a result of some who did).  State approval of such measures thus ran the risk of being seen as state approval of discriminatory views.  The purpose of the Bill of Rights was to “withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials” wrote Justice Robert Jackson in 1943 in the midst of World War Two.  He continued: “fundamental rights may not be submitted to vote; they depend on the outcome of no elections,” a view that the Court has held to now for more than seventy years.  For Kennedy and the majority who saw access to marriage, regardless of gender, as a fundamental right, Jackson’s view was controlling: it was not enough to say that same-sex marriage advocates should win their battle through the political process because the nature of the right they claimed was important enough not to have to rest on uncertain political processes influenced, in part, by those who disdained their choice of partner.

The third element of the “threat to democracy” argument rests on the federal nature of the American political system.  Laws governing marriage have traditionally been the province of the states, as Kennedy himself noted in US v. Windsor two years ago when striking down a national law which prevented the federal government recognising same-sex marriage in those states where it was legal.  Critics of Obergefell argue that Kennedy both ignored his own opinion and trampled over a traditional state right.  Again, however, this rests on a question of perspective.  Windsor did not raise the question of whether the Constitution protected the right to same-sex marriage, only the question of whether a federal law could supersede state judgment on a policy issue.  The Court said no, it could not; state authority in this matter was paramount.  But Obergefell asked a different question: whether equal access to marriage was a fundamental right protected by the Constitution.  Answered in the negative (as opponents do), there is no right to counter the power of the states to define marriage.  Answered in the affirmative, however, under the Court’s own precedent, state authority must yield unless there is a compelling government reason: the majority did not find one.  Again, a position on the “new versus old right” debate is likely to influence the view of state versus federal power on this issue.

Religion

Even before the Court handed down its decision in June critics had argued that a ruling in favour of same-sex marriage would violate religious liberty.  Religious groups are divided on same-sex marriage and can be found on both sides of the debate.  Religious conservatives have, however, been among the most vocal opponents of same-sex marriage, arguing, in general, that because their faith regards homosexuality as a sin they cannot condone or support same-sex marriage without violating their faith.  While there are issues of belief here, there are also important pragmatic questions: will religious bodies be forced to conduct same-sex marriages?  If same-sex marriage is a fundamental right, does a religious business owner have a right to refuse service on the basis of their beliefs?  Many of these debates have been running since Massachusetts became the first state to legalise same-sex marriage in 2003.  Business owners have been sued under anti-discrimination legislation in at least six states for refusing, on the grounds of their faith, to provide wedding services to same-sex couples, a fact used by many religious leaders as evidence of a campaign of discrimination against believers.  A number of states, including Indiana and Arizona ran into trouble when seeking to pass “religious freedom” laws which would protect religious business owners from legal retaliation for refusal of service on religious grounds, laws portrayed by opponents as “freedom to discriminate” bills. 

The situation is complex but not as dire as some religious commentators have argued.  In all states which legalised same-sex marriage through the legislative process before Obergefell, protections for religious bodies were included in the legislation.  No religious group or denomination would be forced to conduct same-sex marriages, just as none are required to marry those who are previously divorced, for example.  Religious bodies retain control over to whom they administer the religious marriage rite; it is a long-standing tradition, protected by the First Amendment, and nothing about same-sex marriage appears likely to change this.

The case of denial of service issues is legally more complicated.  Supporters of same-sex marriage compare denial of service on the grounds of sexuality to denials of service on the basis of race which the Court struck down in the 1960s.  But in terms of the law, as it currently stands, the two are not quite the same.  Since the middle of the 20^th Century, the Court has subjected laws which differentiate on the basis of race to its toughest test, known as strict scrutiny.  States must have a compelling reason and a tightly written law to meet that reason in order for the law to stand.  It is, as intended, a tough test, designed in recognition of the damage done by a long history of legalised racial discrimination.  In the 1970s advocates of sex-based classifications appealed to the Court to treat gender in the same way as race.  The Court did not go quite so far but did pursue a policy of heightened scrutiny in sex-discrimination cases, arguing states must have a significant justification and a carefully worded law.  However, the Court has never clearly stated whether it sees discrimination based on sexual orientation as liable to strict or heightened scrutiny, in fact Kennedy in particular has appeared to go out of his way in all of his gay rights opinions to avoid stating such a clear test.  Obergefell is no different.  This leaves gay rights supporters and religious business owners in something of a legal limbo when it comes to denial of service claims, unclear about the legal test which should be used and thus unclear as to what might be considered legally acceptable or otherwise.  Several of the state level courts which considered same-sex marriage before the Supreme Court addressed this issue of scrutiny but there is no national consensus, making such questions legally complex.  It is likely that the next round of cases linked to same-sex marriage will come in this area.

Discrimination

In his dissent, Chief Justice Roberts accused the Court’s majority of vilifying Americans who continue to support a traditional view of marriage.  Similar criticisms have been made in the public debate.  In terms of Kennedy’s opinion, a close reading of the text would suggest this is an unfair reading of his words.  Kennedy does not claim that those who oppose same-sex marriage (people with “reasonable and sincere” views, he notes) demean same-sex couples or impose a stigma upon them.  What he argues is that when the state passes laws which exclude same-sex couples from activities available to opposite-sex couples the state actions demean and stigmatise those excluded.  Applying this to suggest that Kennedy and the Court’s majority vilified or stigmatised opponents of same-sex marriage, or as Alito suggested, set them up for public labelling as bigots if they dare express their views in public, is pushing the Court’s wording too far.  That is not to say that some involved in the political debate might not do exactly that, and it is to be hoped that most will avoid debate in these terms, but laying the foundations of this debate at the steps of the Court is not a fair reading of the Court’s ruling.

Dr. Emma Long - The Supreme Court and Same-Sex Marriage

Some Thoughts on Obergefell v. Hodges

It has been a month since the Supreme Court announced in Obergefell v. Hodges that the right to same-sex marriage was protected by the US Constitution.  With no new cases coming down to fuel the fire of support or opposition to the Court, with the Court in recess and the Justices off on speaking tours, summer teaching, or vacation and thus largely out of the public eye, and as Americans gradually adapt to the reality of the Court’s ruling (whether in support or opposition), now seems like a good time to return to Obergefell and consider the Court’s ruling.

What is striking is the extent to which Justice Anthony Kennedy’s majority opinion and the principal dissent authored by Chief Justice John Roberts are anchored in a fundamental difference of opinion about same-sex marriage that has been part of the debate from the beginning: were those couples seeking the right to marry asking for a new right or simply for access to an existing right from which they had been historically excluded?

Roberts argues from a perspective which sees same-sex marriage as a new right.  His entire dissent is, in essence, based on this view, although it is not explicitly stated.  Roberts’ frequent and repeated criticisms of the majority for judicial activism, for reaching beyond the bounds of judicial duty, his argument that marriage has always historically been defined as between one man and one woman, and his reading of Court precedent all rest on the belief that the majority created something new in its ruling.  From this perspective, marriage has traditionally been defined as between opposite-sex couples, it was defined this way not as “the result of a prehistoric decision to exclude gays and lesbians” (p.4) but “to meet a vital need: ensuring children are conceived by a mother and a father committed to raising them in the stable conditions of a lifelong relationship” (not to mention to address questions of paternity) (slip opinion, p.5).  That history is important because when the Court traditionally addresses claims of denial of fundamental rights, it looks to the nation’s history and heritage as a way to determine whether that right is indeed “fundamental”.  Here, Roberts argues, that right is not and cannot be considered fundamental when it did not exist anywhere before the last decade of the 20^th Century.  That the majority rules it is a fundamental right, from this perspective, can only be the result of judicial overreach. 

Likewise, such a perspective shapes the dissent’s view of the Court’s precedent.  Cases which involved aspects of marriage, such as interracial marriage in Loving v. Virginia or restrictions on marriage by individuals who were imprisoned or who owed child support, involved access to marriage but did not seek to change the fundamental nature of the institution as established by history.  Those cases were thus rightly decided while Obergefell was not.  But perhaps the clearest statement of this perspective is the closing pages of the dissent addressing plural marriage.  The majority, Roberts argues, “offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.  Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world” (p.20).  Such an argument only makes sense if viewing same-sex marriage as creating a new right where all assumptions might be open to challenge.  On the other hand, if what granting same-sex marriage achieved was simply the opening up of a pre-existing right to couples regardless of gender then the question of plural marriage does not become an issue since the fundamental structure of marriage as between two people is not challenged. (Of course, comparisons of same-sex marriage to polygamy as well as less flattering comparisons have been made by opponents who seem to want to disparage gay couples because of their lifestyle: I do not see Roberts as falling into this category).

In contrast, Kennedy’s opinion is rooted in a clear understanding that all the same-sex couples involved in these lawsuits were requesting was access to a fundamental social institution on the same terms as opposite-sex couples.  Protecting the right of same-sex couples to marry does not, in this view, change the nature of marriage, only open it up to those historically excluded.  It is not a new right, but a very old one adapted to changing social circumstances, adaptations which recognise discrimination where it may not have been seen before (“The nature of injustice is that we may not always see it in our own times,” slip opinion, p.11).  Such changes are not new, Kennedy argued, since marriage has historically changed in other ways, including a move away from arranged marriages, coverture and other sex-based classifications.  Equally, the lesson from the Court’s prior cases, he argued, is that the nature of marriage can, and sometimes must, adapt to changes in broader society, as evidenced by the overturning of laws preventing interracial marriage.  Expanding marriage to same-sex couples is no different than these previous changes, he argued.

Crucially, though, viewing same-sex marriage as an equal right rather than as a new right places the exclusion of individuals from that right in a very different context.  Exclusion “demeans gays and lesbians,” teaches that “gays and lesbians are unequal in important respects,” and “impose[s] stigma and injury of the kind prohibited by our basic charter” (p.17-18).  Critics have compared Obergefell to the infamous Dred Scott (1857) ruling in which a majority of the Court held that African-Americans were never intended to be citizens under the terms of the United States Constitution (their argument, it seems, is about how the Court often gets things wrong and makes “bad” decisions).  Kennedy’s emphasis on dignity, respect, and the stigma of exclusion perhaps more closely echoes Justice John Marshall Harlan’s 1896 dissent in Plessy v. Ferguson against segregation in rail transportation or the Court’s landmark decision in Brown v. Board of Education (1954) holding segregated schools unconstitutional.  Exclusion, without good reason, is not acceptable and, in Kennedy’s view, and that of the four Justices who agreed with him, the reasoning offered by opponents of same-sex marriage could no longer bear the weight. 

 

Of course the new right versus old right debate is not the only disagreement within the pages of Obergefell v. Hodges.  However, it is one not explicitly noted by the participants.  Viewing it this way allows us to see how perfectly reasonable people might disagree on the outcome of Obergefell without having to resort to the kind of vilification of the other side that can be seen in some of the commentary on the case and, unfortunately, in Justice Antonin Scalia’s dissent.  How people feel about the Court’s ruling in Obergefell might well depend which side they find most compelling in the new/old right debate but considering the case on these grounds does at least provide a way of understanding what happened away from the vitriol of the recent political debate.

Dr. Emma Long is a Lecturer in American Studies at UEA. Stay tuned for a follow up piece on Obergefell soon...