The Legality of Law

“What about the higher law, the law of love ?” So pleads the lesbian presidential speechwriter in David Mamet’s latest Broadway comedy, November . The waddling, squawking, lame-duck president is at his wits end. Clarice won’t give him the speech transcript that offers him a feather of a chance to win the reelection (or at least build that indispensable post-term commodity, a presidential library). She won’t give him the speech—unless he agrees to marry her and Daisy.

It’s against the law, the president tries to plead. You’re the president. But I can’t break the law, can I? If it’s right, you can make it law. It’s not right if it’s illegal. It’s legal if you say it’s legal! Is it legal because it’s right? Is it right because it’s legal? What is right? What is legal?!

The California Supreme Court, the media is loudly proclaiming, yesterday struck down a state ban on same-sex marriages. “This decision will give Americans the lived experience that ending exclusion from marriage helps families and harms no one,” the director of Freedom to Marry exalted. What families? , one might reply. Certainly not families as we know them, in any natural sense of the word. Maggie Gallagher of the National Organization for Marriage is emphatic : “The history and interpretation of marriage laws make it clear that this idea that marriage has something to do with responsible procreation was not invented in order to discriminate against gay people, but has deep roots in our legal tradition in all 50 states and the United States.”

It’s not tax breaks and hospital-visit privileges that the 110,000 same-sex Californian couples are after. They have those already through comprehensive domestic legal partnership legislation. What they want is full acceptance, affirmation, validation. And legal partnership falls short. ” Marriage ,” wrote Chief Justice Ron George, carries the “understanding that this word describes a family relationship unreservedly sanctioned by the community.” And if gays and lesbians cannot really call themselves married, this fact “realistically must be viewed as constituting significantly unequal treatment to same-sex couples.”

Does legality make something right? And does legality make an act suddenly be “unreservedly sanctioned by the community”? To the second question, the answer is certainly no . Not suddenly, in any case; few people are so governmentally compliant in their basic understandings, beliefs, and traditions that they will change heart and mind overnight. Webster can define a giraffe as a tree, but that doesn’t subvert the way you or I or anyone else has to see it. But say it long enough, teach it to someone just learning the meaning of those words, and the concept of tree becomes blurry indeed.

Verbal obfuscation does not just lead to mental confusion; it can also lead to moral—personal and societal—confusion. Elizabeth Fox-Genovese somberly predicted : “The freedom for gays and lesbians to marry will decisively contribute to disaggregating all of the remaining social institutions that provide the foundations for any collective resistance against political and economic domination. Contrary to many prevailing views, marriage is not the seat of oppression but rather the last best ground for resistance against it. In binding men and women into loving relations and shared purposes, marriage acknowledges the reality of sexual difference even as it works to bridge that difference and lay a foundation for a vital and, yes, grown-up social life.”

As for the first question, “Does legality make something right?,” we might return to Mamet’s Clarice, grasping for the nature of love: What is right? What about the higher law?