On Wednesday of last week, I engaged in two seemingly disparate acts that I only later realized were directly connected to each other. At 3:00 p.m., during work (sorry, Management Committee), I read the just-released legal opinion in Perry v. Schwarzenegger, which held that California’s Proposition 8 outlawing same-sex marriage was unconstitutional under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. Then, at 9:00 p.m., at home, I watched a rerun of Modern Family.
I had never seen the show before and did not intend to watch it. But I got home late with a McDonald’s extra value meal in hand, sat down on the couch, turned on the tube, surfed the channels and, without any destination in mind, stopped on Modern Family. I had heard that it was a good show and decided to see for myself. Watching the show, I did not have any deep thoughts, legal or otherwise. I was in a high-fat, high-carb-induced stupor. I did notice that the characters included a same-sex couple. But mostly I just thought the show was very funny.
Two hours later I was reading in bed, when I realized that I could not remember anything from the last two pages I had supposedly just read. I was distracted. I was thinking about Modern Family…and then I was thinking of Perry…and then I realized that the television show and the legal opinion were making the same point.
Modern Family is a “mockumentary,” and like any good example of the form, it pokes fun at the sacred cows that we, as a society, supposedly hold dear. So while the show induces laughter around the fact that characters Mitchell and Cameron are a same-sex couple in a world of mostly opposite-sex couples, in doing so, it highlights the fact that there is really one and only one difference between them and us — they are the same sex. They are not worse parents. They are not bad people. The show is funny because it demonstrates that our prejudices against them are absurd and should not be taken seriously.
And that is exactly what Judge Walker found in Perry. Under the equal protection clause, the court analyzed whether there was any “rational basis” for California to draw a legal distinction between opposite-sex marriage and same-sex marriage. He found that there was not. Instead, he found that, “Rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same.”
It is not a coincidence that Judge Walker’s legal holding is the same as Modern Family’s underlying premise. And it should not be surprising to anyone that I was able to experience both on the very same day. Indeed, the concurrency of the same point being made at the same time in our popular media and in most recent jurisprudence is commonplace. Throughout our history, the law and grassroots public perception have always had a symbiotic relationship.
The Lincoln-Douglas debates in 1858 were a media sensation. The morality and legality of slavery had been an issue for years. But in 1858, two popular public figures engaged in a series of live debates on the issue. Press coverage was intense. Most of the nation’s major newspapers covered the debates and reprinted what was said word for word, the public was riveted, and if there had been Nielsen ratings at the time, the debates would have been number 1 in their time slot. Lincoln lost that election. But afterward, he reprinted the debates into a single book, which became an immediate bestseller and contributed immensely to Lincoln’s successful run for the presidency in 1860.
Cited throughout Perry is the 1967 Supreme Court opinion of Loving v. Virginia, which declared unconstitutional Virginia’s law mandating that marriage could only exist between two people of the same race. The same year that the Loving decision was rendered, Sidney Poitier starred inGuess Who’s Coming to Dinner, a motion picture about a white woman who invites her black fiancé to dinner with her family.
The Crying Game was released in 1992. Philadelphia was released in 1993. Four Weddings and a Funeral was released in 1994. Rent opened in 1996. In 1996, the Supreme Court ruled inRomer v. Evans that Colorado’s voter-initiated constitutional amendment prohibiting legal protection for homosexuals as a class violated the equal protection clause of the Fourteenth Amendment.
The “Puppy” episode of Ellen aired in 1997. Will & Grace debuted in 1998. In 2003, the Supreme Court ruled in Lawrence v. Texas that it was unconstitutional to criminalize sexual conduct between two people of the same sex. Brokeback Mountain was released in 2005.
I am not saying that media portrayals are always the horse and the legal opinions are always the cart. The relationship is circular, with the media impacting the perceptions among the judges deciding the law and the law impacting portrayals of the issue by the media. They build on each other, and society progresses.
But the media side of the equation is, in my opinion, much more powerful than the legal side. Because of its widespread, grassroots reach, media alters the landscape in a way that the law alone never could. It presents important social issues to the entire citizenry and asks people to judge for themselves. The movie makes money. The show stays on the air. The people’s will is done. As more people read about the morality of slavery in the Lincoln-Douglas debates, minds were changed. As more people see more and more realistic depictions of same sex relationships, dramatic or humorous, minds are changed.
For each person who read the Supreme Court’s 1857 decision in Dred Scott v. Sandford, a thousand read the Lincoln-Douglas debates in 1858–1860. For each person who reads Perry, a thousand will watch Modern Family.
Most importantly, however, people are not changed by legal mandate. Media is powerful because participation in its enjoyment is voluntary. It is interesting. It is entertaining. It is often fun. And fun is not political. That is why the comedic depictions of a controversial issue are often so much more persuasive than the dramatic depictions of the same issue. It is subversive, in that the viewer does not know she is being persuaded.
I have a good friend who is against same-sex marriage. He would never choose to see A Single Man, the beautifully-acted movie about a man who is not “allowed,” due to the social prejudices of 1962, to publicly grieve for the death of his male partner. But my friend had no hesitation going to see Four Weddings and a Funeral, where he was confronted with the eulogy given by Matthew at the funeral for his partner Gareth. I distinctly recall looking over and observing my friend’s wet eyes and sniffly sounds as Matthew recited W.H. Auden’s Funeral Blues (Stop All the Clocks). He never would have seen (and been moved by) that dramatic funereal vignette had it not been packaged in the middle of a hilarious comedy about four (heterosexual) weddings. If his mind is ever changed on the issue of same-sex marriage, I guarantee that scene will have more to do with it than Perry.
That is the power of media. When the citizenry starts to change its perceptions about an issue, the courts often follow. This is part of what judges and scholars mean when they refer to the Constitution as a “living document.” Justice Kennedy said it best in Lawrence: “Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew time can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
At the time he wrote that, in 2003, the large majority of states had already rescinded their anti-sodomy laws or were not enforcing them. The Court had ruled that Georgia’s anti-sodomy law was constitutional only 17 years before in Bowers v. Hardwick. The changes in public perception that had occurred over that 17-year span were significant in Justice Kennedy’s eyes. While he relied explicitly only on changes in the public’s legal perception of such conduct, I have no doubt that the public’s every-day, cultural perceptions as expressed in media were just as directly, if implicitly, responsible for the change in attitude on the Court. It is very hard to watch Tom Hanks’ character in Philadelphia suffer the humiliation of being fired because he is gay or Ellen Degeneres in Ellen accidentally inform an entire airport terminal “I am gay,” and then uphold a law that effectively labels both of them criminals for being so.
While the Justices will obviously rely explicitly only on the evidence and law presented to them when Perry finally makes its way to the Supreme Court, the supporters of Perry would do better to hope that the Justices have watched Four Weddings and a Funeral, Brokeback Mountain, Ellen, Modern Family, and The Kids Are Alright. After watching these works and others like them, it is very hard to see any relevant difference between a person who deeply loves a member of the opposite sex and a person who deeply loves a member of the same sex.
If there is no meaningful difference, then the only things left is the simple moral disapproval of the majority. But as Justice O’Connor wrote in her concurrence in Lawrence: “Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the purpose of disadvantaging the group burdened by the law.’”
The power of the media versus the law is perhaps best illustrated by the following comparison. If you only read the legal opinions and looked at who sits on the Supreme Court and then asked yourself “will same-sex marriage ever be legal in this country,” you might answer “no.” But if you watch the television shows and motion pictures that depict dramatic and humorous examples of same-sex couples in real-life situations and then ask yourself the same question, you would immediately answer “yes.” You only need to look at what is happening in pop culture to know with 100% certainty that same-sex marriage will be a legally-protected right some day. It is just a question of how long it takes the Court to catch up.