Following the decision of two Californian judges not to injunct the San Francisco granting of marriage licenses to same sex couples President Bush has again said that he is troubled by “activist judges, who are defining marriage”

“I’m watching very carefully, but I’m troubled by what I’ve seen. People need to be involved with this decision. Marriage ought to be defined by the people, not by the courts, and I’m watching carefully,” he said according to the LA Times.

Bush’s performance, like so many others in this debate, is fascinating.

The judges in the Massachusetts case which started it all, and which the City of San Francisco is following, based their decision on the state’s constitution. Just as the national Supreme court judges, in the recent Texas sodomy case, based their decision on the most sacred document of US democracy, the Constitution which begins: “We the people….”

Bush’s contrast between activist judges and the people is a furphy. In classic democratic theory, judges are just as much a representative of the will of the people as elected officials because they are the guardians of the constitution which supposedly embodies the essence of American identity. The judicial arm provides a balance in the system of checks and balances that ensures that the will of the people rather than the will of cliques are enacted.

Of course when it suits him Bush has no problem with activist judges. He has appointed more activist judges than anyone else Vanity Fair (December 2003, can’t provide a link because incredibly VF doesn’t have a site!) recently reported that Bush had nominated 164 judges to Federal courts, all of them extreme right wing activists with perfect Federalist Society credentials. Janice Rogers Brown, who has already been nominated to the Federal circuit and who Bush is tipped to nominate to the Supreme Court, is described by one Vanity Fair source as the dream conservative candidate, “the love child of Ayn Rand and Lyndon LaRouche”

These Bush nominees are not only activist judges on traditional conservative push button issues like abortion, they are waging a much larger ideological war. Legal scholar Cass Sunstein outlined the potential threat of this agenda in an American Prosepct article last year.

If the judiciary’s current tendencies are not monitored and exposed for what they are, they may go beyond the Rehnquist Court’s relatively incremental decisions to far larger changes in American law. We could easily imagine a situation in which federal judges not only eliminate affirmative-action programs entirely but also:

– strike down almost all campaign-finance reform;

– invalidate parts of the Endangered Species Act and the Clean Water Act;

– interpret the Second Amendment so as to reduce the power of Congress and the states to enact gun-control legislation;

– elevate commercial advertising to the same status as political speech, thus preventing controls on commercials by tobacco companies (among others);

– further reduce congressional power under the commerce clause and the 14th Amendment;

– generally limit democratic efforts to prevent disabled people, women and the elderly from various forms of discrimination;

– significantly extend the reach of the “takings” clause, thus limiting environmental and other regulatory legislation; and much more.

The gay marriage debate because it is so volitile has a way of drawing out the fissures in both society and ideological thinking, it catches people saying things that on closer inspection don’t add up.

Andrew Sullivan’s analysis of John Kerry’s flip-flopping on gay marriage is a perfect example and shows how same sex marriage confuses those on both sides of the ideological divide:

HOLT: You say you oppose gay marriage. As you know, the highest court in the state of Massachusetts has ruled against civil unions, which you support. If it were to come before you today for a vote, the issue of a constitutional amendment defining marriage as that between a man and a woman, would you vote yes or would you vote no?

KERRY: Well, it depends on the terminology, because it depends on what it does with respect to civil unions and partnership rights. About the rights, I believe that it is important in America not to discriminate with respect to rights. I, personally, believe that marriage is between a man and a woman.

In two sentences, Kerry says two things that, in the view of the Massachusetts Supreme Judicial Court, are contradictory. The court was asked whether partitioning gay couples into an institution called “civil unions” was discriminatory or not. The judges said it was–because civil unions reinforce stigma and exclusion for no rational reason. If Kerry believes that civil unions do not do such a thing, he should explain why. Instead he just repeats the contradiction.

The basic question is: Why should the government grant a marriage license to two people who do not have biological children of their own, while denying such a license to two equally qualified people who also have no biological children of their own? Kerry’s civil marriage to Teresa Heinz falls into the childless category. It also falls into a category condemned by the Catholic Church–a second marriage after a divorce. Kerry needs to explain why what’s good enough for him isn’t good enough for a gay couple. He hasn’t. He won’t. He wants to pander to prejudice while maintaining he is in favor of equality.

What did it reveal?

The super bowl breast business was an amazingly revealing moment, JJ’s right breast being the least of it.

First the language.

Jackson said in her statement that the decision to do a “costume reveal” was made after the rehearsals. Timberlake blamed it all on a “wardrobe malfunction” and Jackson’s publicist said there was “some kind of collapse in the garment”.

They sound like they are talking about some failed military strategy or a rocket that didn’t make it though re-entry.

And that’s really the question. What texts have been allowed to land with this one?

There’s been plenty of common sense comment from media scholars and the less up tight columnists.

“For the league to say, ‘We are shocked,’ over the exposure of a woman’s breast is the height of hypocrisy on multiple levels,” Robert Thompson, director of the Center for the Study of Popular Television at Syracuse University, told USA Today’s Ian O’Connor

As he goes onto comment:

The NFL’s beer sponsor, Coors Light, spent the postseason blitzing viewers with yet another mindless commercial featuring buxom barmaids and cheerleaders, an ad hardening the notion that women who dare to step inside America’s testosterone-crazed football culture are to be seen exclusively as sexual playthings.

Don’t blame Justin Timberlake for trying to one-up his ex, Britney Spears, who locked lips with Madonna before poor Justin’s saucer-sized eyes. Timberlake was only behaving the way men are encouraged to behave in your average NFL beer ad, where male fans either get drunk and fantasize about mud-wrestling bimbos or get drunk and fantasize about twins.

“There are so many things going on in those ads more disturbing than a quick glimpse of a naked breast,” Thompson said. “This quick exposure was a tiny drop in the bucket. … The NFL didn’t know this would happen, but the league was fully aware of the rest of the halftime show. The bumping and grinding. The costumes. The fact it was put on by MTV.”

And there was plenty of comment along those lines. As the editorial in the same paper concluded:

The Super Bowl halftime show was a victim of its own conceit — that it could put an “edge” on the broadcast. The result was tacky and artificial, a public display of affectation. The public display of Jackson’s breast was only part of the problem. The nation has seen better as well as worse.

But this didn’t stop the circulation of outrage.

Bush administration head media regulator Federal Communications Commission chief Michael Powell called the incident “classless, crass and deplorable.”

And of course all of the organisations and individuals concerned have spent the day apologising.

Others tried to quell the outrage.

“There’s no story here,” University of Southern California journalism professor Joe Saltzman told the SanFrancisco Chronicle “People have seen a breast before.”

He is right of course but he’s also wrong. There’s a very big story here. The nerve that was touched is raw – fleshy and awkward

Powell’s full statement tells some more of that story:

“I am outraged at what I saw during the halftime show of the Super Bowl,” said Powell, promising a swift and thorough investigation. “Like millions of Americans, my family and I gathered around the television for a celebration. Instead, that celebration was tainted by a classless, crass and deplorable stunt. Our nation’s children, parents and citizens deserve better.”

Here we see the ritual context of the scandal: families gathered to watch their gladiatorial heroes demonstrate the sportsmanship, athleticism, courage and manly competition that lies at the heart of the American dream. What was revealed in amongst this manly chest puffing and preening?

A black amazon’s breast.

But this is more than fear of female sexuality. This is fear of the MTV generation. This is fear of the performative. Fear of accidents. Fear of a new world where home is an unfamiliar place.

Janet Jackson’s breast revealed that the Super Bowl pantomime, Joe DeMagio, field of dreams America is no more: a mirage that never was.

Mad Vow Disease

I’ve neglected this blog for a couple of months now. Mainly because I am trying to finish off my Master’s thesis.

But I want to get back into the discipline of regular posting. So to begin here’s an excerpt from a talk I gave recently about media naratives of same sex marriage. I’ll post some more over the next few weeks because it’s obviously a red hot issue at the moment. Lesbian comedian Kate Clinton recently called it a bad case of mad vow disease!

In the piece below I take a step back and ask what is the general way that marraige is portrayed in the media.

My initial explorations would suggest that the two dominant media stories about marriage present it as either a fantasy or as a social problem. It is either a fairy tale romance of a princess or movie star or it is a story about divorce rates, the problems of working mothers or child custody battles.

There is also a third narrative about marriage, which is part of a wider discourse, that I will call the “new world” or the “new adventure”. It includes articles like one in the Melbourne Age (2/10/03) that explored couples who are also business partners or an article from the Good Weekend (1/2/03) that explored new extended families, where the new and old families of divorced partners – including both sets of ex-partners and their new partners – form a friendly relational unit. This is part of the wider media discourse about emerging social trends and the advent of a “new world”. It is partly utopic and partly dystopic and thus embraces elements of both the fantasy and problem narratives of marriage. This story about new forms of social organization is where narratives of gay marriage intersect with the general media stories about marriage.

In the single biggest media story of a marriage in recent times: the story of Diana of Wales, we can see the intersection of all three marriage story types. It was, at different points in its trajectory, presented as both a fairytale and a problem and was also played out against a story of changing social forms in regard to marriage, the monarchy and the media.

In recent times we have seen the emergence of another princess fairytale in the news. On 9 October 2003 Sydney Morning Herald – and most other Australian papers – led with the story of Mary Donaldson the real estate agent from Tasmania and her engagement to Prince Fredrick of Denmark.

The keynote of the stories published about Donaldson over the weeks surrounding the announcement was the motif of “transformation”: of a commoner into a princess, of an English speaker into a Danish speaker, of a woman fond of “sporty” attire into a wearer of haute couture.

These stories clearly represent an institutional discourse about marriage even when this is cloaked by the fantasy of the lucky princess. This is nowhere clearer than in the stories that have emphasised that “her main job” in the immediate future will be to bear an heir.

The headline of the main announcement story (SMH 9/11/03) is revealing: “Danes denied a kiss but still love Aussie Mary”. This is a romance without visible passion.

In the same issue of the Herald another power couple were featured: victorious Californian Governor Arnold Schwarzenegger and his wife Maria Shriver. If anyone was in doubt that this was an American dream sprung to life you only had to listen to Schwarzenegger’s victory script: “I came here with absolutely nothing and California has given me absolutely everything. I want to be the people’s governor”, Schwarzenegger said. He called for support to make “the tough choices ahead” so that “together we can make this again the greatest state in the greatest country in the world”. (SMH 9/10/03)

Shriver is an integral part of that dream. She comes with Kennedy family pedigree and thus links this story with the Kennedy story, with the Camelot myth, with the story of Jack and Jackie.

But this is not really about romance, it is about a pragmatic alliance. The “telegenic and politically astute” Shriver as one report (SMH 9/10/03) called her, is an important part of Arnold’s political strategy. He makes this clear in his thank you speech. The report continues:

Mr Schwarzenegger fought back against the groping allegations with the help of his wife, who is recognised as a talented television journalist. Ms Shriver was the first person the actor thanked for his victory. He told her in front of his supporters: “I know how many votes I got today because of you.” (SMH 9/10/03)

If Shriver’s relationship to the Kennedy’s immediately summons up the vestiges of the dream of Camelot, this defence of her husband immediately summons up another contemporary political marriage: that of Hilary and Bill.

If in the story of Fredrick and Mary we see the fantasy meeting the institution with Schwarzenegger and Shriver we see the dream meeting pragmatism.

What is strikingly obvious from both these examples is the extent to which current media discourse on marriage is still embroiled in traditional narratives of gender and linked directly to other narratives of political power.

Marriage itself is a narrative ritual act. The form it takes is a story that two people tell to one another as a sign of their commitment: to love and to cherish, in sickness and in health, till death do we part.

This story is told in the context of a particular national and particular institutional setting, it is told against the stories of others who have been married before, and it is a story that often contains both dream and pragmatics, both fantasy and problematics, romance and politics.

It is in this context of an institution that is at once idealised and problematised that we need to situate any discussion of same sex marriage.