On Tuesday, SCOTUS heard oral arguments
on the California Prop 8 case. Along the
way, justices and counsel made some amusing points, but also made some gross
misstatements of historical reality or the availability of evidence about gay
marriage in practice. Here I’ve debunked
those points…
Once the justices made their way to the
merits of the case (Prop 8 proponent’s standing to sue was heavily questioned),
the liberals had at Cooper, the attorney defending Prop 8.
Kagan dug early into the “harms” of
same-sex marriage:
KAGAN: Is -- is there -- so you have sort of a reason for
not including same-sex couples. Is there
any reason that you have for excluding them? In other words, you're saying,
well, if we allow same-sex couples to marry, it doesn't serve the State's interest.
But do you go further and say that it harms any State interest?
Cooper’s answer was that “normal” procreation is harmed and
noted that he feared some ethereal eventual harm to the “traditional”
institution of marriage.
Let’s talk about “traditional” marriage, or lack thereof,
for a moment. In Ancient Persia
thousands of years ago, rich men had a harem and multiple wives. (In case you
hadn’t noticed, polygamy is now illegal in the US). In Ancient Greece and Rome, marriages were
arranged to solidify patronage relationships or family alliances, not loving
procreation. Romans regularly had sexual
exploits outside of marriage with same-sex partners, and there was no inherent
stigma in having a same-sex partner.
Romans could also divorce relatively easily, an aspect of marriage that
disappeared for the next 1900 years before we led the charge on bringing divorce
back. In medieval Christian households,
a married man was entitled to order his wife to do basically anything and have
a court enforce it; he could also permissibly beat her with a stick up to the
width of his thumb and rape her at will.
Most of the time, it was not love, but a gift from the bride's father of several cows, bushels of grain, or wads of cash (remember a "dowry") that sealed the marriage. Meanwhile, in North America, native American cultures were permitting
spiritual unions between same-sex couples (I've blogged on his before).
So, Mr. Cooper, unless your idea of marriage includes obligatory
extramatrial affairs to achieve sexual satisfaction, payment by the bride's father, domestic abuse,
intra-marriage rape, and grossly uneven gender rights, there’s no kind of
“traditional” marriage of the last 2000 years that is actually legal in the United
States.
The justices eventually moved on to the idea of kids in gay
households. Not shockingly, Scalia set
this ball rolling:
SCALIA: Mr. Cooper, let me -- let me give you one -- one
concrete thing. I don't know why you don't mention some concrete things. If you
redefine marriage to include same-sex couples, you must -- you must permit
adoption by same-sex couples, and there's -there's considerable disagreement
among -- among sociologists as to what the consequences of raising a child in a
-- in a single-sex family, whether that is harmful to the child or not. Some
States do not -- do not permit adoption by same-sex couples for that reason.
[Ginsburg lays hammer
down and points out that gay couples can adopt in CA so it doesn’t matter...]
JUSTICE KENNEDY: I -- I think there's -there's substantial
-- that there's substance to the point that sociological information is new. We
have five years of information to weigh against 2,000 years of history or more.
On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and
that's the voice of these children. There are some 40,000 children in
California, according to the Red Brief, that live with same-sex parents, and
they want their parents to have full recognition and full status. The voice of those children is important in this case, don't
you think?
MR. COOPER: Yes, Your Honor. The concern is that redefining
marriage as a genderless institution will sever its abiding connection to its
historic traditional procreative purposes, and it will refocus, refocus the
purpose of marriage and the definition of marriage away from the raising of
children and to the emotional needs and desires of adults, of adult couples.
Oops. The definition
of marriage is not, and has never been, limited to those raising children. It’s unclear how “the emotional needs and
desires of adults” are not satisfied by gay marriage. But let’s talk about the kids. Are the kids alright? Despite consistent citation by the justices
and counsel that there was not much evidence to answer the question (Julianne Moore movies notwithstanding), there are numerous studies that
have been published showing that kids
of gay couples benefit when parents marry, kids of gay couples have equal
academic performance metrics and equal
health metrics as those of straight couples. In fact, there’s a study out there suggesting
kids of lesbian couples are actually BETTER
OFF than those of straight couples. I
suppose we’re just going to ignore these.
So, Cooper is off on his rant about how marriage is an
institution traditionally tied to procreation.
Kagan immediately began to tear this ridiculous over-simplification
apart by pointing out that an old straight couple can’t procreate either:
KAGAN: No, really, because if the couple -- I can just
assure you, if both the woman and the man are over the age of 55, there are not
a lot of children coming out of that marriage.
[LOL] This question
became a debate about the importance of fertility in marriage, which resulted
in a Scalia zinger:
JUSTICE SCALIA: I suppose we could have a questionnaire at
the marriage desk when people come in to get the marriage -- you know, Are you
fertile or are you not fertile?... I suspect this Court would hold that to be
an unconstitutional invasion of privacy, don't you think?
Coopers response was
like a flashback to 1918: “[But sir, one partner must always be fertile
in an opposite-sex because men never go infertile! Go men!
So, straight marriage is never totally non-procreative.]” Cooper did not explain how procreating with
someone when your wife was infertile was a “traditional marriage,” though
frankly that’s closer to the historical nature of marriage than anything else
he said about “traditional” marriages.
Finally, the opponents of Prop 8 stood up, and the
conservative justices fired away…
ROBERTS: I'm not sure, counsel, that it makes -- I'm not
sure that it's right to view [prohibiting gay marriage] as excluding a
particular group. When the institution of marriage developed historically,
people didn't get around and say let's have this institution, but let's keep
out homosexuals. The institution developed to serve purposes that, by their
nature, didn't include homosexual couples.
Touché, Justice Roberts.
But, smart as you may be, no one had the chance to explicitly exclude
homosexuals from marriage 200 years ago, or even 200 years ago. Why?
There was no such thing as “gay” or “homosexual” then. As I've discussed in No Church in the Wild, the very word "homosexual" only came to exist after an 1869 German pamphlet AGAINST sodomy laws. You can’t exclude a group that doesn’t exist. There was definitely same-sex sex, though –
I’ve researched this at length. The other problem, of course, is that Roberts
implicitly equates marriage and a union of love – marriage was rarely related
to love over the last several millennial.
Scalia asks, when did
prohibiting gay marriage become unconstitutional?
Oh, Scalia, you trickster.
You’d probably argue that interracial marriage prohibitions aren’t
unconstitutional because they were left intact when the 14th
amendment passed (oh, you kinda did). My
lawyer answer: as soon as a person identified himself or herself as “gay” in
America. At that point, a minority
category was created and discrimination could exist, which is prohibited by the 14th Amendment in the 1860s at the absolute latest.
KENNEDY: The problem -- the problem with the case is that
you're really asking, particularly because of the sociological evidence you
cite, for us to go into uncharted waters, and you can play with that metaphor,
there's a wonderful destination, it is a cliff. Whatever that was.
This is after excessive discussion about how there’s no
evidence of how kids fare in gay households.
Kennedy thinks kids in gay households are still a mystery, and this is
bad for our community, cause he’s our swing vote. Send him all the studies you find about how
well kids in gay households are doing, please.
Alito: Traditional marriage has been around for
thousands of years. Same-sex marriage is very new. I think it was first adopted
in The Netherlands in 2000. So there isn't a lot of data about its effect. And
it may turn out to be a -- a good thing; it may turn out not to be a good
thing, as the supporters of Proposition 8 apparently believe. But you want us
to step in and render a decision based on an assessment of the effects of this
institution which is newer than cell phones or the Internet? I mean we -- we
are not -- we do not have the ability to see the future. On a question like
that, of such fundamental importance, why should it not be left for the people,
either acting through initiatives and referendums or through their elected
public officials?
Well, now there is one thing gay love
equivocally is not, and that is newer than the Internet. As Oscar Wilde, Eleanor Roosevelt, Dinah
Shore, or Harvey Milk. They all probably
wished to spend their life with someone of the same sex at one time or another. Society at large just didn't recognize their love. So, Alito, you, as you sit on the Supreme
Court, really subscribe to the logic that gay love started when gay marriage
was legalized in the
Netherlands? Really? In the meantime, could you assess the institution
of child marriages? I’m pretty sure a 14
year old can still marry in Alabama.
That’s not new either. Also, I
think the Internet was partly invented in order to distribute gay porn, so that
works against you too…
VERRILLI: And the fourth point I would make, and I do think
this is significant, is that the principal argument in 1967 with respect to
Loving and that the Commonwealth of Virginia advanced was: Well, the social science
is still uncertain about how biracial children will fare in this world, and so
you ought to apply rational basis scrutiny and wait. And I think the Court
recognized that there is a cost to waiting and that that has got to be part of
the equal protection calculus. And so -- so I do think that's quite fundamental.
Ah, thank you, Mr. Verrilli for the
government. Remember when we as a
country seriously asked whether interracial children would be okay? How are Josh Freeman and Russel Wilson doing
with it? Yeah, that was always a stupid
question to ask, and now the conservative justices are asking the same
questions about kids in gay families.
COOPER: If, in fact, it is true, as the people of California
believe that it still is true, that the natural procreative capacity of
opposite-sex couples continues to pose vitally important benefits and risks to
society, and that's why marriage itself is the institution that society has
always used to regulate those heterosexual, procreative -- procreative
relationships.
Oh shit, I didn’t realize marriage
certificates were regulating procreation!!!
Does this mean we can stop sending welfare checks to single
mothers? Are teenage pregnant girls
actually married without knowing it? I mean, under this logic, they must have
been because marriage is absolutely proportional and germane to the birthing of
babies.
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