As I write this post, the Supreme Court is beginning to hear one of two cases regarding same-sex marriage, Hollingsworth v. Perry, No. 12-144, which will determine whether California’s referendum banning gay marriage (Proposition 8) is constitutional. As the New York Times reports:
Two California couples challenging Proposition 8, the state’s ban on same-sex marriage, say it excludes gay and lesbian couples from an institution with a deep and distinctive meaning and thus violates the Constitution’s guarantee of equal protection.
Defenders of the ban say that states should be able to work out for themselves whether to permit same-sex marriage. The Constitution is silent on the question, they say, and the court should not intervene in the vigorous debate playing out across the nation.
Nine states and the District of Columbia allow gay and lesbian couples to marry. Polls show that a majority of Americans support same-sex marriage, suggesting that further gains are likely in state legislatures and at the ballot box.
If the court is to establish a constitutional right to same-sex marriage, it will be in this case and not in a narrower one to be argued tomorrow, on Wednesday, about the federal Defense of Marriage Act (DOMA). The latter deals with how the federal government would treat same-sex couples (namely in terms of federal benefits and obligations), which DOMA wouldn’t recognize since it defines legal unions as those between a man and a woman. If the banning of gay marriage is found unconstitutional in today’s case, chances are DOMA would get shot down. A great article in the New Yorker offers more background details, and shares that opinion that DOMA will likely get shot down.
So what might happen with respect to the comparatively more vital Prop 8 case being debated as we speak? The Times article breaks it down thusly:
The court may say the Constitution requires all states to allow gay and lesbian couples to marry. At the other extreme, the court may say the Constitution is silent on the question, leaving states free to allow or reject same-sex marriage. (There is no possibility that the court would ban same-sex marriage in places that choose to permit it.)
The court could also adopt a rationale that would apply only to California along the lines of the one endorsed by the Ninth Circuit. It could adopt the “eight-state solution” suggested by the Obama administration. Or it could dismiss the case for want of standing, which would probably effectively allow same-sex marriages in California.
Meanwhile, Slate describes how the Supreme Court could determine the validity of either side of the Proposition 8 case:
When laws treat one class of people differently from another, as Prop 8 and DOMA do, the Supreme Court has a choice. It can strike down such laws only if they have no rational basis. Or it can look more closely, and ask whether the law passes the test of “heightened scrutiny” (the standard in sex discrimination cases) or “strict scrutiny” (the standard when discrimination on the basis of race, ethnicity, or religion is at issue). The justices have never applied one of these higher standards in a gay rights case. But some lower courts have used the heightened scrutiny tests in same-sex marriage cases. Will the justices move in that direction? Personally, I think there’s no rational basis for banning gay marriage. The myth that children fare worse when raised by gay parents, for example, has been shredded by social science. But if the court went for heightened scrutiny in the context of gay marriage, that would make it easier for gay people to sue over employment discrimination or mistreatment as well.
Indeed, I’m quite surprised that there is so much legal, political, and public wrangling about this issue. There is absolutely no empirical evidence that the married gay couple down the street is going to have any negative impact on your personal life. Is a gay marriage really any more disruptive than the millions of failed, abusive, unfaithful, and otherwise unhealthy heterosexual marriages that are common in our society? Is it anymore immoral or unfavorable as the dozens of other actually unsavory things that are technically legal in the private sphere — alcoholism, sexism, bad parenting, bullying, infidelity, etc? What happened to keeping government outside of our personal lives?
I’m rather amused by the arguments levied by the opposed party in the Prop 8 case, as reported in another New York Times article on the subject:
What justifications have supporters of Proposition 8 offered? They say that preserving the traditional definition of marriage will “further society’s vital interests in responsible procreation and child rearing.” Those interests would be undermined, they say, by “officially redefining marriage as a genderless institution.” It is rational, they add, to proceed with caution in changing the definition of marriage, to respect societal judgments made through the democratic process.
So are those who make this argument claiming that infertile couples shouldn’t have the right to marry? And are they really claiming that marriages exists only as an instrument of procreation, rather than of love between two people? Does that mean people should only be allowed to marry insofar as they plan to have children? Does that mean a couple can’t raise children responsibly without the label of “marriage” upon their relationship?
The point about “responsible child rearing” is especially interesting. Does anyone really think that banning gay marriage will somehow turn back centuries-old social ills like child abuse, negligent parenting, teen pregnancy, and the like? Are consenting gay adults willing to adopt children really the worst thing that can happen to the institution of marriage?
All this reminds me of the outlawing of interracial marriage that once existed in several states. It should be noted that in the 1967 landmark case Loving vs. Virginia, which was challenging just such a law, the Supreme Court made the following ruling:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
Replace any reference to “race” with “sexual orientation,” and tell me if there is any appreciable difference. Also keep in mind that, like arguments against gay marriage, many of these racist laws had religious grounds, which should have no bearing on our constitutionally secular legal system.
And despite popular belief, the fact that people voted to ban gay marriage in California or else doesn’t make it legally or ethically legitimate: if people democratically chose to reinstitute racial segregation, it obviously wouldn’t be any less unconstitutional. We shouldn’t forget that slavery was once popularly supported by the people of each slave state. The 14th amendment protects freedoms regardless of who strips them (though whether gay marriage will be a legally recognized freedom will remain to be seen).
I try to imagine what it would be like if homosexuals were the dominant group in this country, and they decided by matter of personal conviction that traditional marriage is a backward and outdated practice that should be banned. In response to this, wouldn’t proponents of heterosexual marriage make the same arguments they currently reject from the gay community – that people have a right to marry who they want, and that the government shouldn’t be in the business of telling people who to marry?
Furthermore, aren’t these the same individuals who claim they want small government, and that the state shouldn’t involve itself in private matters? Clearly they will make exceptions when it’s convenient. That’s why democracies are measured by how much freedom they accord to their minorities, who could otherwise easily be oppressed by the tyranny of the majority
Why should someone’s rights be limited or looked down upon just because something is seen as unfavorable or “sinful?” Setting aside the fact that our secular government shouldn’t take into account such views with respect to the law, if it harms no one, it shouldn’t be immoral. There is no credible scientific evidence showing that gay marriage harms anyone, be it the participants, their immediate loved ones, or society at large.
Indeed, the overwhelming consensus by scientific academies the world over is the homosexuality — including homosexual parenting — has no discernible negative affect on anyone, at least not anymore than “regular” heterosexual partnerships do. The American Academy of Pediatrics recently came behind gay marriage, after an extensive scientific review of over 60 studies, finding that it was far preferable to have gay parents than none at all.
Besides, the empirical evidence is clear: of the 11 countries that currently recognize gay marriage — and the many more than at least legalize civil unions and similar alternatives — the majority rank very well in metrics of political stability, crime, poverty, and other measures of social ills. The same goes for the majority of US states. If gay marriage were really so disruptive to the social order, we’d be seeing these communities racked with all sorts of subsequent problems.
So from scientific and rational perspective, there is simply no rational basis for banning gay marriage. As long as it involves two consenting adults — which of course is all anyone is advocating for — than on the basis of liberty for autonomous persons, it should be allowed. If you don’t like it, than you don’t have to have a gay marriage, nor will your religious institution be required to perform one. You have a right to dislike or be offended by something, but not to use the legal system to act on behalf of that prejudice.
Regardless of how the Supreme Court rules, the trend is clear: the majority of Americans support (or at least tolerate) gay marriage, and the numbers continue to grow. In fact, it was only a decade ago that most people were opposed to gays and lesbians marrying. A complete reversal in such a short span of time suggests that sooner or later, homosexuals will have the right to marry, whether by judicial decree or popular votes.
Either way, this court case will be leaving me at the edge of my seat.