A Stitch in Haste

A blawger, having recently watched the original 1957 film version of Twelve Angry Men, asks a societal rather than a legal question:

Were all-male juries still the norm in 1957, when the film was released? That seems awfully late, given that the right of women to vote was adopted in 1920. When did it become abnormal?

Since the quest for gay rights invariably draws analogies to and builds upon previous civil rights movements, I grew curious and did a little research.

This is what I came up with:

"We cannot say that it is constitutionally impermissible for a State acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities."
--Hoyt v. Florida, 368 U.S. 57 (1961)

"It is untenable to suggest these days that it would be a special hardship for each and every woman to perform jury service or that society cannot spare any women from their present duties."
--Taylor v. Louisiana, 419 U.S. 522 (1975)

So on the one hand, as late as 1961 and beyond, a presumptive bias against women as jurors was not only extant but expressly litigated for by state governments and judicially sanctioned in federal courts.

Why? Just because. "Traditional" juries had, duh, always been all male. Society had long-standing expectations about the roles of men and women (Hoyt: "woman is still regarded as the center of home and family life") — and who were judges to second-guess the reasoned decision-making of legislatures or the "will of the people" who elected them (or, alternatively, the cultural detritus of "tradition")? The fact that such a gender bias was wholly unsubstantiated was irrelevant; the judges just took such biases as self-evident. Stated differently, they adjudicated a basic constitutional question by hunch.

Change is slow.

Then, in a remarkably short fourteen years (roughly the same time as between Bowers v. Hardwick and Lawrence v. Texas), the Supreme Court completely reversed itself: "If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed."

It was, at least in this instance, no longer the prerogative of courts to acquiesce to groundless presumptions about an entire gender or about how all families function. In this context, as in so many others whenever our society and our jurisprudence mature: if you are going to treat an entire class of people differently (and unfairly), then you need a much better reason for doing so than "just because" or "tradition" or "duh."

Change is fast.

Many different analogies between female juror case law and gay marriage litigation could easily be drawn. The one that sticks out in my mind is the rationalization for the discrimination. The traditional rule was couched in terms not of "woman are unsuitable to be jurors" but rather "families need women to stay home." No bigotry, right? Just "concern for the family." And it was of course nonsense then just as it is nonsense today.

For Discussion: Any analogies to be drawn to Don't Ask Don't Tell?

This is hilarious:

1943 Guide to Hiring Women
Excerpt:

3. General experience indicates that "husky" girls — those who are just a little on the heavy side — are more even tempered and efficient than their underweight sisters.
...
8. Give every girl an adequate number of rest periods during the day. You have to make some allowances for feminine psychology. A girl has more confidence and is more efficient if she can keep her hair tidied, apply fresh lipstick and wash her hands several times a day.

This, meanwhile, is not so hilarious:

Attacks Show Easygoing Jamaica Is Dire Place for Gays
Excerpt:

Disapproval of gays is an entrenched part of island life, rooted, Jamaicans say, in the country's Christian tradition. The Bible condemns homosexuality, they say. But critics say islanders are selective in the verses they cite, and the rage at gay sex contrasts sharply with Jamaicans' embrace of casual sex among heterosexuals, which is considered part of the Caribbean way.
...
The country's public defender, Earl Witter, later condemned the violence at the funeral, but he also reinforced the common view that if only gays would be less flamboyant, there would be less violence against them. Speaking to the Mandeville Rotary Club last April, he urged Jamaica's gays to avoid flaunting their sexual orientation. "Hold your corners," he said in the local vernacular, because "it may provoke a violent breach of the peace."

And if Lawrence King has simply abstained from "flaunting himself" at school, he would never have forced a fellow student to blow his brains out.

Down the road, we will of course mock anti-gay bigotry the same way we can mock this silly 1943 guide to employing "girls."

The only questions are how long the road is, and how many bodies will be strewn alongside it.

"And God created great whales, and every living creature that moveth, which the waters brought forth abundantly, after their kind, and every winged fowl after his kind: and God saw that it was good."
--Genesis 1:21 (KJV)

"I can say positively, that a whale is no more a fish than a man; nobody pretends to the contrary now-a-days, but lawyers and politicians."
--Samuel Latham Mitchell, 1818

"Why, some folks says whales isn't fish at all. I rayther calculate they are, myself. Whales has fins, so has fish; whales has slick skins, so has fish; whales has tails, so has fish; whales ain't got scales on 'em, neither has catfish, nor eels, nor tadpoles, nor frogs, nor horse-leeches, I conclude, then whales is fish. Everybody had oughter call 'em so. Nine out of ten doos call 'em fish."
--Etchings of a Whaling Cruise, 1846

Trying Leviathan: The Nineteenth-Century New York Court Case That Put the Whale on Trial and Challenged the Order of Nature, by D. Graham Burnett (Princeton University Press, 2007)

Is a whale a fish?

In the modern era, anyone with a fragment of intelligence and a fragment of education knows the answer: Of course not.

But two hundred years ago, that question was actually hotly debated. Intelligent people, experts even, fiercely argued whether a whale was a fish. And centuries before that, there was likewise a time when anyone with a fragment of intelligence and a fragment of education knew the answer: Of course a whale was a fish.

From obvious to obvious, with a pesky period of uncertainty in between. Such is the zoological and taxonomic history of the whale. Just as the history of gay marriage will eventually become.

And, as with most things modern or even semi-modern, the interregnum of uncertainty over what was once obvious (and would be obvious again, just in the opposite direction) wound up in court. In the matter of the nature of the whale, the court was in New York City in 1818, in a case called Maurice v. Judd.

The facts of Maurice v. Judd could not be more boring: The New York State legislature had enacted an inspection regime for fish oil (which came in a broad spectrum of varieties and qualities — and therefore prices). Transacting in uninspected fish oil was a minor offense punishable by a $25 fine per barrel. Maurice (the fish oil inspector) fined Judd (a candlemaker and oil merchant) $75 for buying three barrels of uninspected fish oil. Judd refused to pay the fine, insisting that he had not bought "fish oil," but whale oil.

For historical perspective: 1818 was 41 years before On the Origin of Species was published and 33 years before Moby Dick. Even without the yet-to-be-opened Erie Canal, New York was already the top commercial center of North America — and was fast becoming the scientific and intellectual capital as well. Both fishing and whaling were dominant industries in the city. One of the most popular recreational destinations in New York was Scudder's New American Museum — later Barnum's American Museum — which counted among its main attractions a massive whale jawbone.

By 1818, the role of the whale in both people's imaginations and their wallets led to some intellectual quandaries about whales and whaling: If a whale is a fish, then why is its tail horizontal rather than vertical? Why do whales not have scales? Why do whales breathe air (that whales could drown was a proven fact by then), and give birth rather than lay eggs (and nurse their young with milk)? Why were whales so much smarter than lesser fish? (Apart from the challenge of their size was the challenge of their brains — whaling is hunting, not mere fishing.) And, perhaps most importantly, why did the insides of whales — which were known in the most minute detail as a simple commercial matter — resemble not the lesser fishes but rather cows and pigs?

On the other hand, to many (but not all) zoologists of the time, the inside of a whale would have been totally irrelevant. In terms of what today is known as "taxonomy," shape and environment were the categorical bases for grouping animals, not internal anatomy. Whales looked like fish (tails and blowholes notwithstanding) and lived where fish lived (the 1817 edition of a leading English dictionary defined fish simply as "an animal that lived exclusively in water"). Therefore whales are fish, QED.

Not to mention that pesky Bible problem: Genesis clearly delineated creation by environment: "fish of the sea" (so, as a matter of elementary Judeo-Christian theology, oysters and crabs are "fish"), "fowl of the air" (bats?), and "every creeping thing that creepeth upon the earth." Again, whales don't creepeth upon the earth, so the notion that they are "animals" was fundamentally un-Christian and even bordered on blasphemy.

And of course the Bible contains some stray verses specifically (and definitively?) "resolving" the whale-fish conundrum. In (English versions of) the Old Testament, Jonah is a swallowed by a fish; in Matthew he spends three days in the whale's belly. And since the Bible is the inerrant Word of God (even after translating it into English), as a matter of simple (Christian) logic, a whale must therefore "obviously" be a fish.

On the other hand, there had been some other "problem cases" even before the whales. Seals sometimes "creepeth upon the earth" and clearly had appendages like the familiar land quadrupeds (but not four appendages, which was a major headache for the zoologists of the time). And no one was calling turtles "fish" in 1818.

Indeed, by 1818 zoologists had generally conceded that their field was far from complete and that debate and dissent about proper taxonomic classification was not only permissible but inevitable — especially as new species of just about everything kept being discovered. (Linnaeus himself had formally separated whales from fish in 1766.) Moreover, the leading natural history scholars — particularly Samuel Latham Mitchell, a retired politician who also happened to be the pre-eminent authority on the fishes of New York and the founder of what would become the New York Academy of Sciences — led the charge among American natural historians to convert taxonomy to a science of dissection: that species should be grouped together by how they looked on the inside rather than on the outside.

And he was almost universally damned for it. His high-profile (and uncompromising) testimony in Maurice v. Judd that "a whale is no more a fish than a man" essentially ended his status a popular quasi-celebrity in New York high society. In modern terms, this former senator and premiere intellectual had become politically radioactive for defying the will of the majority.

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Besides the Biblical (non-)arguments, some of the "whales are fish" rationales invoked in Maurice v. Judd will sound familiar to advocates of same-sex marriage today: Whales are fish because they've always been fish — why should "tradition" yield to new ways of thinking? Whales are fish because the majority of people think they're fish — their lack of any particular knowledge or expertise on the matter notwithstanding.

The discomfort, indeed disgust, experienced by a growing number of enlightened sailors and other observers upon seeing the cruel nature of whaling generally (and the especially inhumane ritual of pursuing a mother whale that would defend — to her death — her offspring) was countered by ubiquitous popular descriptions of whales as "monstrous" and even satanic. Whales therefore deserved no sympathy whatsoever as they were brutally slaughtered wholesale (literally — this was a business, after all). It's a tried and true defense mechanism: The easiest way not to have to worry about being fair to something, or someone, is to dismissively demonize it, or them.

And, some argued, even if whales are indeed "not fish," then they're still certainly not mammals — give them a separate taxonomic class if you must, but don't dare "weaken" the "privileged" status of "mammal" (the highest form of subhuman animal) by extending it to whales.

And speaking of "subhuman," if scientists start saying that whales are closely related to, e.g., primates, then what's to stop them from eventually saying that people are closely related to primates? And if, biologically, insides matter more than outsides, then what does that say about race? As Burnett chronicles:

Conveniently [co-counsel] was there to conjure up those very dreams, darkening the nightmare with the bogies of race, civic disorder, and excessively universal franchise. ... [He] warned of what might lie ahead if the men of science were given license to interpret the statutes of the state.

Damn activist scientists!

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So what happened? After some wrangling about whether statutory interpretation should even be a question left to the lay jurors of a municipal trial court (a debate we sometimes have to this day), the judge charged the jury — which, after a whopping 15 minutes of deliberation, ruled as a matter of legally binding "fact" that a whale is indeed a fish. More than a century before Scopes, science was put on trial, and was convicted.

The media largely celebrated the triumph of common sense (and Scripture) over newfangled philosophizing. But there was an undertow:

Even as these flippant voices rose to hail the legal affirmation of common sense and common usage, a second chorus, or perhaps a mumble, sounded a lower note. As men ... circulated word of the court's decision among the learned circles of Philadelphia and Boston, heads collectively shook at this new performance of New York's stridently philistine culture. Whales as fish? The better sort knew better.

Modern sophistication anchored in Philadelphia and Boston, with New York as a "flyover city"? Go figure.

(The case was immediately appealed, but the New York legislature intervened and promptly amended the inspection statute to specifically exempt whale oil, rendering the entire litigation moot.)

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I doubt anyone would call it an abomination to suggest that the quest to drag the law — and the Bible, and the masses — into modernity is far more urgent in the context of gay marriage than it was in the context of whale oil. The point is that facts tend to win out in the end, and that the occasional legal roadblocks that slow us all down on the path to jurisprudential enlightenment are temporary and fleeting. That may have provided little solace to Mr. Judd upon hearing the jury verdict, and may be cold comfort to gays who see their neighbors constitutionalize bigotry today. But even when you lose, knowing that victory is somewhere down the road keeps you going.

Just try not to get harpooned along the way.