Historical Fiction Pick List

I’m hard to please when it comes to historical fiction. Some novelists know their history inside and out, but aren’t the best storytellers (like Colleen McCullough and Gary Jennings), while others are able to write suspenseful narratives only by slaughtering history (like too many to name). Here’s my updated pick list of the true gems.

New Worlds

shogun1Shogun, by James Clavell. 1975. (Japan, 1600.) This is a novel that completely re-contextualizes you. You begin horrified by the Japanese and somewhere, somehow, become convinced they’re the civilized ones. By the end, you’re actually thinking like a samurai and endorsing ruthless codes against your integrity. Ritual suicide and honor killings — of which there are countless in Shogun — made complete sense to me; that’s how good Clavell is making you forget who you are. It’s probably the most didactic novel I’ve ever read (its message being that western people have much to learn from easterns) and yet it never feels preachy. Clavell is a storyteller whose priorities are action, romance, and political intrigue; endless backbiting; and cracking dialogue. He wants you to live and breathe the past, and to see feudal Japan through the eyes of the first Englishman to sail there. He reinvents historical figures like Will Adams and Ieyasu Tokugawa without sensationalism, knowing exactly when to loose the bounds of his imagination. Shogun taught me as much about thrilling fiction as it made me reflect on themes that were clearly important to Clavell — death (escaping from “the abyss of life”, as one samurai reflects), love (understood in terms of duty more than affection), and treachery (the other coin to honor-shame loyalty, and sometimes esteemed as a virtue). What can I say, Shogun is The Lord of the Rings of historical novels, and its influence as direct.

king+of+vinlandThe King of Vinland’s Saga, by Stuart Mirsky. 1998. (Greenland & Maine, 1040s.) If Shogun is about the clash of east and west, this is of Viking and Indian, and the codes of honor just as deadly. Mirsky’s narrative is lyrically old-fashioned, but incredibly addictive once you get used to it. The dialogue sea-saws between descriptions of what is said and the actual quoted speech. For example: “Osvif said this was all very irregular and a serious matter, ‘or didn’t you know that it is a fatal flaw to bring charges against men, if you are equally guilty of them?'” Or this: “Arnliot laughed and promised to bring her back many fine gifts from the land of the Skraelings, ‘and not least of these, the heads of those who oppose me’.” I’ve never seen this style wielded with such rhythmic discipline, and it meshes perfectly with the gloom-and-doom tone of the Norse and Icelandic sagas. The story is about Leif Erickson’s grandson who sails to North America and reclaims the territory of Vinland, assimilates into a Skraeling (Indian) tribe and battles against another, and then finds himself in hot water when the enemies he left behind in Greenland come after him. Mirsky follows the idea that Vinland was in present-day Maine rather than Newfoundland (where most historians place it) and to convincing effect. This is a page-turner of family feuds, overseas conquests, hopeless battles, and doomed warriors. And there’s no Dances with Wolves political-correctness here; neither Vikings nor Skraelings are heroes or villains. Each is fluent in savagery — and each capable of the rare tender mercy.

captain from castileCaptain from Castile, by Samuel Shellabarger. 1945. (Spain & Mexico, 1518-1522.) It’s hard to believe that authors like Shellabarger were the John Grishams of their day, but this was the golden age of American fiction. The popular novels of the ’40s look like high-brow literature today, and Captain of Castile may as well be a classic. It throws you into the life of a young Spaniard who seeks honor and wealth in Aztec lands, after fleeing in terror from the Spanish Inquisition. The capture of his family and death of his sister at the Inquisitor’s hands drive incredibly powerful scenes, and Cortes’ conquest of Tenochtitlan (Mexico City) seems drawn from first-hand accounts. For a ’40s effort, the contrasts between the new world’s “pagan savages” and supposedly superior conquistadors is handled with surprising subtlety; Shellabarger’s decade was a politically incorrect one, to say the least. What politically incorrect elements do emerge are a strength in any case, for the same reason Clavell’s brand of multiculturalism is; respect for the Other doesn’t preclude judgments or even feelings of superiority, and there’s as much (if not more) to judge about the Aztecs as the Spaniards. There are dilemmas about friendship, racism, and religious tyranny. And a powerful love triangle: Pedro pines for an aristocrat beyond his reach, but is also madly in love with a tavern-wench beneath his station; it’s impossible to predict how that will end. Captain from Castile is focused abroad, but it’s the first part set in Spain, revolving around the fist of the Inquisition, that stays with me, more than even Aztec sacrifice.

The Fall of Empires

lily and the lionThe Accursed Kings, 6 vols, by Maurice Druon. 1955-1960. (France, 1314-1336.) I can see how this series inspired Game of Thrones. There’s political corruption and vicious family quarrels; clashes between the church and throne; civil war; lust, adultery, backbiting, murder, regicide, baby-switching, baby-killing… the list goes on. The setting is France during the last years of the Capetian kings, and the drama turns particularly around the conflict between Robert III of Artrois and his aunt Mahaut. He constantly plots her ruin, first by engineering sex scandals with her daughters, who are imprisoned for life after their lovers are flayed and quartered. Robert’s relish as he’s about to break the news characterizes the tone of the series: “Listen, Lormet. I want this fat bitch to hear from me the extent of her disaster. Here begins one of the greatest and happiest days of my life. No beautiful girl in love with me could give me greater pleasure to see than the hideous phiz of my aunt when she hears what I have to tell her about her daughters. And I want her to accelerate her own ruin by braying to the king; I hope she dies of vexation.” Mahaut, for her part, completely deserves a nephew like this, as “murder was her favorite method; she enjoyed the memory of her murders, extracting from them all the excitements of fear, the pleasures of deception, and the joys of secret triumph.” Really the only likeable character is the young Sienese banker Guccio, who marries a poverty-stricken country girl, with tragic results. The Accursed Kings shows the downfall of a dynasty that deserves to fall amidst venal self-serving ambitions. I couldn’t put these books down.

eaglesThe Camulod Chronicles, 6 vols, by Jack Whyte. 1992-1999. (England, 367-449.) There are plenty of novels about King Arthur, but this is the series to read. It starts with the fall of Hadrian’s Wall and spans eight decades, until on the last pages of the sixth volume, the young king pulls the sword from the stone with no magic involved. Whyte associates Arthur with the documented figure known as the Riothamus, “High King” of the Britons/Bretons in the fifth century, one of the more intriguing historical theories. Most interpretations of Arthur are set in the sixth century, and with a more Celtic and less Roman flavor. Here the legend falls into place without ever leaning on the supernatural, like Excalibur, the Round Council (“Round Table”), Avalon, and Merlyn’s sorcery. I especially like the way the Round Council harks back to the equality of the republican Roman Senate, established in Camulod to put an end to petty feuds over status. Merlyn’s metamorphosis into into a “sorcerer” — from Legate Commander of Camulod into a bitter, reclusive, and shadowy figure skilled with poisons — is handled brilliantly, not only for taking many volumes to get there, but because of what it finally takes to make him snap, guilt and self-recriminations over the horrible deaths of loved ones. There have been endless theories about the location of Camelot, and Whyte puts it around the Cadbury area. This series is a first-rate imagination of what happened to England when the Roman legions left.

Holy War

les-lions-dal-rassanThe Lions of Al-Rassan, by Guy Gavriel Kay. 1995. (Spain, 1080s.) I consider this story inspired enough to constitute lasting literature, and it gets away with indulging certain myths about Islam’s “golden age” because the genre excuses it. It’s a fantasy, that reinvents 11th-century Spain beyond the constraints of standard fiction — with empowered women, sexually libertine carnivals, and heightened multiculturalism. It also telescopes historical events for better effect. For instance, the Reconquest of Spain was a proto-crusade which predated the first holy war to Palestine, but here they occur at the same time. For all the liberties taken, there is enough reality to justify the “historical” label. Kay doesn’t flinch from the ruthless Islamic pogroms inflicted on the Jews, nor the dynamics between the Umayyads and the invading Almoravids from Africa. The story shows the crusading reconquest of Spain through the eyes of a Christian warrior (El Cid), Jewish doctor, and Muslim assassin, who become allies in a mercenary band until the war divides them. It’s an epic about unlikely friendships in time of war, and the collapse of an age. Even if we like El Cid, we grieve for the fall of Al-Rassan. And if this version of Islamic Spain is too good to be true, our emotions don’t depend on that fantasy. When El Cid begs Ammar to join the Christian cause, and the Muslim replies that he would rather be “a camel herder in Africa than a shepherd in Spain”, his defiance rings true, even if he has far more reason to despise people of his own faith than the Christian crusaders.

ironfireIronfire, by David Ball. 2004. (Malta, North Africa, & Turkey, 1552-1565.) The Siege of Malta was a repeat of Thermopylae. The crusaders were hopelessly outnumbered, and their victory just as miraculous. That victory kept the Ottomans from controlling the Mediterranean. Ball’s narrative moves like a juggernaut. It holds you in an emotional vise and makes you constantly fear for its characters. And it makes you reflect on what it really means to grow up in a world of brutality, indifference, and religious divides. I’d call it the most profound novel I’ve read dealing with the theme of individual powerlessness and the will to forge your fate despite it. It begins with two siblings playing on an abandoned coast, and they are surprised by corsairs; the nine-year old brother is captured, taken to Africa and enslaved; the thirteen-year old sister won’t see him for another thirteen years. In-between, the story moves back and forth between Maria’s peasant life on Malta, and Nico’s life as a slave in Algiers and then as a royal page at the court of Istanbul. His conversion to Islam starts out skin-deep, but then evolves into something quite real, while his sister grows up suffering guilt over losing him, joining an outcast Jewish community, and stalked by a local priest who eventually becomes the island’s Inquisitor. Their lives unfold with the sort of detail that makes you think this stuff is too real to be made up, and by the end you feel like they’re part of your family.

twelve childrenThe Twelve Children of Paris, by Tim Willocks. 2013. (Paris, 1572.) Whether you love or hate this novel will depend on how flexible you are with genre. It’s the massacre of St. Bartholomew’s Day (1572) as Quentin Tarantino might envision it — pulp historical fiction at its most graphic and obscene. The violent content was judged so extreme that it couldn’t even be published in the U.S. The hero’s slaughter-fests make him as bad as the villains. Most of the opposition he faces are poorly trained city militia, everyday thugs, and politically appointed “knights” hardly worthy of the title. He kills out of simple revenge for his wife, hardly caring who. The St. Bartholomew’s Day massacre began as a royal stab against the Huguenot elite but degenerated into a full-blown extermination of unarmed Protestant civilians by the Paris militia. Tannhauser’s personal degeneration matches the city’s; there’s backstabbing everywhere, and a kingdom of beggars and thieves shunned by everyone. Those dark alleys are Tannhauser’s ultimate destination, and where an unexpected salvation is found. There, and in the souls of raped and dispossessed children he rescues along the way. The cloak-and-dagger intrigue is crisp, and the mystery of who wanted Tannhauser’s wife dead and why unfolds at the right moments. It’s an unusual novel that indulges hyper-elements to explore the consequences of hurt, and the inability to transcend monstrosity.

an army of childrenAn Army of Children, by Evan Rhodes. 1978. (Germany & Italy, 1212.) The Children’s Crusade was a bizarre event, involving two boys who had independent visions of marching to Palestine with armies of pacifist children, and shaming the Muslims into giving up the holy lands. This march of peace would supposedly succeed where over a century’s worth of crusading warfare had failed, and the boys attracted huge followings for their outlandish fantasy, one in Paris, the other Cologne. When the French group came to Marseille — apparently expecting God to part the seas so they could continue — local merchants offered to transport the children in seven ships; two of these ships were lost at sea, while the others went to Africa, where the kids were sold into slavery. The German group made it as far as Rome (many having died en route in the Alps) but dispersed when the pope refused to see them. Some persisted in trying to secure passage to the holy lands, and, like the French children, were shipped to brothels and slave markets, this time in the Mediterranean. This novel follows the German kids (for which historical documentation is more reliable than the French), and if you want a heartbreaking look at one of the strangest mutations of medieval crusading, then An Army of Children will leave its mark on you.

Princes, Jarls, Tai-Pans

prince of foxesPrince of Foxes, by Samuel Shellabarger. 1947. (Italy, 1500-1502.) I consider every book on this list a page-turner, but Prince of Foxes is the page-turner’s prototype. It’s set in the Italian Renaissance, during Cesare Borgia’s conquest of the Romagna, and does a great job portraying the geographical politics. While other places in Europe (England, France, Spain) had become nations moving towards unity and strong central governments, Italy clung to its feudal states sniping at each other. Borgia’s attempt to subjugate all of central Italy was the right idea, but as a tyrant he was the wrong person for it. Andrea Orsini is a retainer of Borgia who finally leaves service when he can no longer stomach the man. He’s the story’s protagonist, a peasant upstart who has hidden his identity and pretends to be of the noble Orsini family. The novel brings to life the honor-shame codes of the Mediterranean region, where deceptions and betrayals are highly esteemed if you can win by them. Once Orsini is found out, even the real Orisini family doesn’t begrudge him wearing their coat of arms — they even admire it as it’s used against them — as he has “earned the right to it”. Throw in a saint (Lucy of Narni) and the most notorious pope in history (Alexander VI), and you’ve got a novel on fire.

sword of the northSword of the North, by Richard White. 1983. (Scotland & Massachusetts, 1356-1398.) How Columbus got the credit for discovering America I’ll never know. Leif Erickson beat him by five centuries, and Henry Sinclair probably beat him by one. This novel is Sinclair’s story. He was Baron of Rosslyn in southern Scotland and also Jarl of the Orkney Islands, and as White portrays him a fair but firm ruler who went at heads with corrupt bishops and venal noblemen. He got around plenty before embarking on his voyage to North America — to Norway, the Faroe Islands — and there’s even an amusing scene where visiting England he bumps into that father of literature, Geoffrey Chaucer. The dialogue is superb, lyrical and almost poetic without sounding aloof. There’s striking humor on display, and whether or not it represents 14th-century thought, it’s the book’s clear signature which sets it above the mainstream. It’s long out of print and almost unheard of, which is a shame. The author was a teacher at my high-school back in the ’80s, and he went on to write the smashing western Mister Grey; only three years ago he finally published his scholarly research on Sinclair’s expeditions, These Stones Bear Witness.

tai-panTai-Pan, by James Clavell. 1966. (Hong Kong, 1841.) It may not be the jewel Shogun is, but it’s still a masterpiece, and it has the most colorful cast of characters in any novel I’ve read. We all know the cliches of characters so dynamic they “leap from the page”, but cliches were made for novels like Tai-Pan. The setting is the British occupation of Hong Kong and an empire built on opium smuggling; the hero a Scottish pirate who dreams of uniting the best traditions of China and Europe, as he also works to bring down a former shipmate who owns a rival trading company. The vicious conflict between these men and their families is the heart of the story, and every time you think a confrontation will go a certain way, it doesn’t. As in all of Clavell’s stories, the thrill of the plot dominates in a clash of cultures, with a deep respect for the east that doesn’t patronize. In fact, Clavell wasn’t very politically correct. Multiculturalism, for him, involved the cost of choice — recognizing this lifestyle as better, and that value as superior, so that something has to go. Dirk Struan (like Shogun’s Blackthorne) ultimately “chooses” the West for its democracy and free trade, and the East for its diet, cleanliness, sexual pleasures, and philosophy. This is the only novel on my list without battles or invasions: trade is the theater of war, and its castles are the opium, spices, teas, and silks so highly valued in an age of British colonialism. Trust Clavell to make stock prices so exciting.

Free Speech: From the Left, Right, and Center

The Muhammad Cartoon Contest has resulted in a national conversation about the nature of free speech. The usual suspects have emerged, but there have been some unexpected turns as well. I could never have predicted that a right-winger like Bill O’Reilly would condemn Pamela Geller, and I was pleasantly surprised to see the flaming liberal Chris Hayes come out in her defense with no apologies — not a single parenthetical disclaimer to distance himself from her politics. He’s a better person than I am.

In the spirit of my Thanksgiving post last year, I’ve assembled three video-clips about free speech. They’re short (around 5 minutes) and to the point, and I’ve chosen them to show that clear-headed thinking on this subject, while increasingly rare, can be found on all parts of the political spectrum — left, right, and center. That, at least, is encouraging.

……………………………………………………………………………………………

From the left: Bill Maher educates his own tribe.

maher free speech

Click for video


……………………………………………………………………………………………

From the right: Robert Spencer speaks at the Muhammad cartoon event which he co-hosted.

Spencer-Cartoon-050315

Click for video


……………………………………………………………………………………………

From in-between: Sam Harris speaks to the moral failure of publishers who chose not to print the Hebdo cartoons.

Sam_Harris

Click for video

What the Texas Cartoon Event Was, and Wasn’t, About

It wasn’t about needlessly provoking or offending people, nor cultural arrogance. It was about some long overdue cultural assertiveness.

The “cultural arrogance” is that of those who want to kill cartoonists in the name of blasphemy laws which the cartoonists don’t subscribe to. That’s the infliction of one culture over another which liberals should be fulminating against, but seldom do.

Every western outlet that refused to publish the Charlie Hebdo cartoons back in December was catering to Islamic blasphemy laws, and every western citizen who is now criticizing the Texas cartoon event is doing the same.

We don’t criticize the Broadway play, The Book of Mormon, for outrageously decimating the Mormon faith. No: we praise a song like this as pure genius. (And bust our guts laughing.)

And we certainly don’t summon liberal outrage over “hateful” and “religiously demeaning” cartoons like the following, which shows Moses high-fiving Jesus as they’re jacked off by Ganesha, who in turn pounds Buddha up the ass:

religious satire

The Texas cartoon event wasn’t about needless offense or arrogance. It was about reinforcing a basic principle that is widely acknowledged by all the world’s faiths save one. Personally, I’m all for self-restraint and respecting another group’s sensibilities. But not when it’s the self-restraint of fear, and not when that group is continually accommodated by a different standard.

The event wasn’t even about drawing Muhammad per se. It’s simply that drawing Muhammad is a point where Islam draws the line, and so that’s the obvious place where First Amendment advocates like Robert Spencer and Pamela Geller make their stand. They should be applauded for doing so. Faulting them for being too provocative is as gross as blaming loosely-dressed rape victims. If there are Muslims who resent their faith being ridiculed, then tough rocks. It’s up to them to join the rest of the world — and to learn the virtues of real tolerance in a genuinely pluralistic society.

“Be innocent as doves to genuine gay couples, and shrewd as snakes to LGBT activists trying to burn you”

Michael Bird doesn’t believe in same-sex marriage. I do. What I find interesting is that he is able to promote a supportive approach despite his evangelical beliefs, and by appealing to an array of biblical texts. In God, Pastries, and Religious Freedom, he writes:

“My own view is that religious freedom is for the common good and in reflex those who enjoy that freedom ought to act for the common good. Faith communities tend to be benevolent and profess to exist for the sake of others, not for the sake of themselves. At least for Christianity, that means putting the needs of others above your own, exercising love at one’s own expense, and bearing the cost of other peoples’ burdens.”

Which is great. But is it theologically credible? Or would Michael Bird simply be laughed out of the room by the vast majority of his fellow evangelical Christians? On Facebook and his blog, he has received applause, so that’s a good sign he’s not spitballing.

On the one hand, Bird affirms the necessity of religious freedom:

“I think we can agree that people’s religious freedom should be protected and no-one should be coerced into doing something their religion prohibits. It would be wrong to walk into a halal butcher and demand that they provide you with three pounds of pork chops. To demand a Jewish baker make a birthday cake for Adolf Hitler would be bastardly. To ask a Christian baker to bake a cake with the slogan, ‘Jesus Christ Superfraud’ would likewise be horrible. All of us, the religious and the non-religious, have our own sensitivities, and most of the time we can work around them without too much inconvenience to anybody. This is what it means to have a pluralistic society and a multi-cultural work-place. Secularists who insist that religious folks must leave their faith at home simply don’t understand that religion is a way of life and not just an expendable fashion accessory. It is also a mockery to fairness and tolerance if people’s religious values are not accommodated as far as can reasonably be expected in the marketplace.”

Quite right, and as I said two days ago, in half-agreement with Justice Antonin Scalia, it is unreasonable to expect rabbis and ministers to conduct marriages not in accord with their beliefs. Opposing same-sex marriage for religious reasons doesn’t necessarily imply bigotry (though it often unfortunately does).

On the other hand, Bird also acknowledges that religious freedoms have to be balanced against new covers for discrimination:

“The question remains does this commitment to fairness in the workplace and freedom of religion in the marketplace extend to the right to discriminate and the right to refuse someone your business? Does a Christian baker have the right to refuse to bake a wedding cake for a gay wedding? Does a Muslim caterer have the right to refuse to cater for a Bar Mitzvah at the local synagogue? Does a Hindu taxi-driven have the right to refuse to pick up a person wearing a shirt saying, ‘Bob’s Steakhouse’? At one level, we could say that the refusal of business is their loss, but on another level, the person refused would feel more than merely inconvenienced, probably a little alienated. Think of the wider consequences too. Do we want doctors turning patients away because of their ethnicity under the guise of religious freedom? Do we want cafés refusing to serve customers because of their religious apparel, their gender, race, disability, diet, or because of their marital status? The problem is that religious freedom might become a convenient cover for new forms of discrimination and even old forms of segregation.”

Right again. So this is how Bird applies his (conservative, evangelical) faith to the common good — or how he “exists for the sake of others rather than himself”, and puts the needs of others above his own, exercises love at his own expense, etc. If he ran a bakery and a gay couple wanted a wedding cake,

“I’d bake that cake to the glory of God and be the nicest possible baker they’d ever met, not despite being a Christian, but precisely because I am one. I want to try to be like the Apostle Paul and be all things to all people so that I might save some (1 Cor 9:22). At the end of the day, the best witness Christians have to the world is the quality of their work and the compassionate character of their service… The Christian Scriptures point us towards such a position. God told Jeremiah that while he was in exile in a pagan city he was to, ‘Seek the peace and prosperity of the city to which I have carried you into exile. Pray to the LORD for it, because if it prospers, you too will prosper’ (Jer 29:7). In other words, seek the betterment of others and blessings for others. Jesus commanded his disciples to love their neighbours and their enemies, presumably even if your neighbour is gay and even if your perceived enemy is an LGBT activist (Matt 5:44; Luke 6:27, 35). The Apostle Paul could say to the churches in Corinth – and Corinth was a city full of pagan religion and sexual excess – ‘Do not cause anyone to stumble, whether Jews, Greeks or the church of God–even as I try to please everyone in every way. For I am not seeking my own good but the good of many, so that they may be saved’ (1 Cor 10:32-33). None of this requires being a door mat, surrendering your religious freedom, but if you are a Christian then it does entail a willingness to struggle with the messiness and ambiguity of being in the world but not of the world. Opening a stall in the modern day agora will mean encountering people from all walks of life, people of all faiths and none, and striving to be compassionate to all while remaining faithful to one’s religious convictions.”

This application of the gospel carries credible force, much like that promoted by, say, Pope Francis. What’s key is that a counsel of tolerance, accommodation, and good will can be readily derived from the Christian scriptures. One might debate and split hairs; and obviously not every Christian will applaud Bird’s theology. But large numbers of them do. I’ve often said that most of the toxic ideas found in most of the world’s major religions (save one) carry within themselves the seeds of their own transformation. Christianity has centuries of homophobic intolerance to deal with, thanks largely to Leviticus and Paul. But Paul himself can be used to extend his own ethic of charity, not to mention his savior’s.

Finally — as if all this weren’t impressive enough — Bird ends his post by firing a shot at the PC police:

“Of course, if some LGBT activist came to my bakery and ordered a cake just to humiliate me by making me do something against my religious beliefs or to find a way to seek punitive legal damages against me, then I’d agree to bake the cake, but I’d inform them in advance that I’m donating their money to either the most far right politician I could find or to some gay ministry program run by Catholics or Southern Baptists.”

Good for him. I might be inclined to do something similar in his shoes. My church (Unitarian Universalist) takes same-sex unions for granted, but I have no more use for PC hypocrites than Michael Bird does. “Be innocent as doves to genuine gay couples, and shrewd as snakes to LGBT activists trying to burn you,” is an evangelical position which I can certainly applaud from the sidelines.

Supreme-Court Rainbow?

rainbow_courtThe preliminaries in Obergefell vs. Hodges were interesting to watch. I’m predicting 6-3 in favor of the constitutionality of gay marriage: 4 guaranteed and 2 swing.

We need reminding, especially with a hot-button issue like gay marriage, that the role of the Supreme Court is not to legislate nor to block questionable legislation. It is simply to determine what laws are constitutional. Here is what the justices — eight of them; one remained silent — say.

Update (6/26/15): The result was 5-4. My predictions below were correct except for Roberts who did not swing. See here for analysis.

THE DISSENT (3)

scaliaAntonin Scalia. Everyone hates this guy, and not without warrant, but he does get some things right, and — though I hate to say it — he’s the sharpest mind on the court. If not for his swing-vote with the liberals in Texas vs. Johnson (1989), we wouldn’t today have the right to burn the American flag. He may be an arch-conservative, but he cares keenly about civil liberties. In this case, he clearly wants to preserve the right of religious pastors to conduct marriage according to their creed. Thus, he says, the question of gay marriage should be the state’s decision. Allowing states to decide the issue would allow them to make exceptions — for example, that gays can be married, but ministers who don’t believe in gay marriage cannot be required to marry them. If, on the other hand, the supreme court rules that gay marriage is a constitutional right, ministers won’t be able to opt out.

On the face of it, his argument is reasonable, but Attorney Mary Bonauto and Justice Elena Kagan shot it down. Under the First Amendment, according to Bonauto, a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at. Kagan likewise pointed out there are many rabbis who refuse to conduct marriages between Jews and non-Jews — even though we have a constitutional prohibition against religious discrimination — and those rabbis get all the powers and privileges of the state. Scalia’s objection really doesn’t hold.

alitoSamuel Alito. I have a grudging respect for Scalia but certainly not Alito (his lone dissent and contempt for the First Amendment in Snyder vs. Phelps (2011), disqualifies him from serving on the court in my opinion). His objections carry less force than Scalia’s. He asks that if two people of the same sex can marry, then why not four people of opposite sexes? The institution of marriage in America takes two partners for granted. More than two raises issues that state marriage laws don’t address and aren’t equipped to handle. Put simply, polygamy isn’t an analogy here.

Alito also claimed that denying same-sex marriage doesn’t necessarily imply homophobia. There have been cultures, he says, which were very tolerant of gay sex, but which also didn’t allow gay marriage, like ancient Greece and medieval Japan. That’s obviously true, but a rather laughably stupid observation, in view of the fact that gay sex in such warrior-cultures tended to reinforce roles of power and subordination. Alito, as usual, is the tool of the supreme court.

thomasClarence Thomas. He was the only justice who had nothing to say, but then he’s a nothing judge who should never have been appointed. (He was chosen by the first Bush only because he was black, to replace the retiring black Thurgood Marshall.) It’s a guarantee he will vote against gay marriage, for little or no good reason. With Scalia, he filed the blistering dissent months ago, against the other justices’ rejection of Alabama’s plea to say no to gay marriage in the state until the supreme court issues its own decision.

THE SWING (2)

John G. Roberts portraitJohn Roberts. I have considerable respect for our chief justice. His swing-vote with the liberals in National Federation of Independent Business vs. Sebelius (2012) declared Obamacare constitutional, which I believe cut strongly against Roberts’ personal feelings for the health insurance mandate. Indeed, at first he was considering that Obamacare was unconstitutional under the commerce clause, but then ultimately recognized that it was a constitutional exercise of Congress’ taxing power. (And make no mistake, Obamacare is certainly a tax: it’s an amendment to the Internal Revenue Code; it’s calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger; it raises revenue; it serves the general welfare, and is not a criminal penalty in disguise.)

Roberts may go “against himself” again. As with Obamacare, he doesn’t seem wild about the idea of gay marriage. He voiced strong concerns about changing how the institution of marriage has been recognized for a long time, as well as the impact of shutting down state-level debate with a supreme-court ruling. On the other hand, he seems to entertain doing exactly that, if the question can be resolved by simple reference to sexual discrimination (rather than sexual orientation). “If Sue can marry Joe,” he asks, “but Tom can’t marry Joe, isn’t that sexually discriminating against Tom?”

kennedyAnthony Kennedy. On the one hand, this is the guy who wrote the decision for Lawrence vs. Texas (2003), which recognized a fundamental right to have sex with a partner of one’s choice. On the other hand, Kennedy is like the chief justice — worried about changing a definition of marriage that has been the same for “millennia.” I suspect he’ll emerge in favor of gay marriage, given his consistent concern about preserving the dignity of the relationships between gay couples and families.

IN FAVOR (4)

GinsburgRuth Ginsburg. Ginsburg got in the best zinger when she responded to the idea that marriage is for procreation: “Then why do we allow old people to get married?” Score.

More significant was her response to the concerns of other justices (Alito especially, but also Roberts and Breyer) that allowing gays to marry would transform the definition of marriage. Ginsburg says the definition of marriage has already been transformed — after the women’s movement led to the eradication of laws that treated wives as the property of their husbands. Marriage has become increasingly inclusive, and so gays deserve the same equal treatment that women and other previously disadvantaged groups now receive. A reasonable argument.

Official Portrait of Justice Sonia SotomayorSonya Sotomayor. Sotomayor takes the opposite approach of Ginsburg, focusing on marriage more as a static fundamental right, rather than an evolving one. For if marriage is fundamental, she says, it must be extended to all citizens on equal terms: “The right to marriage is embedded in our constitutional law. It’s a fundamental right. You can’t narrow it down and say, ‘Is gay marriage fundamental?’ or ‘Is black-and-white marriage fundamental?’, etc. That, for me, is as simple as the question gets.”

kaganElena Kagan. It’s a given that she will vote for gay marriage (she has presided over gay weddings), and like Ginsburg she refuted idiotic objections. To the claim that banning gay marriage encourages responsible pro-creation among straight people, she asks whether we should, by implication, ban marriage between straight people who don’t want to have children.

breyerStephen Breyer.I don’t believe for a moment that Breyer will vote against gay marriage. His initial bluster over the supreme court being forced to decide an issue that should be left in the hands of the states was mere token posturing. I suppose one of the liberal justices had to make a feeble show of resistance, and this was it.

His next observation obviously showed his true colors, and echoed Sotomayor: “Marriage is about as basic a right as there is; that the Constitution and Amendment 14 does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law. To take a group of people where so little distinguishes them from the people you gave the liberty to, and to deny them participation in this basic institution — that violates the 14th Amendment.”

Rainbow Verdict?

More than likely. From a constitutional perspective, it’s hard to deny gay couples the same legal benefits enjoyed by straights. Bringing up procreation is meaningless (unless we’re seriously going to entertain denying marriage to old people and straights who don’t want to, or can’t have, kids).

On the dissenting side, Scalia is correct that religious pastors should not have to marry gay people if that conflicts with the pastor’s beliefs. Realistically, I don’t see that being a problem.

It hinges on Roberts and/or Kennedy, and they will probably swing. Roberts is like the retired David Souter — capable of rendering decisions against his interests in favor of constitutional elements — and Kennedy has consistently called for extending to gay people constitutional dignities.