Tuesday, March 26, 2013

SCOTUS to Take Up DOMA and Prop 8

Image from source, Towleroad
Starting today, and through tomorrow, the Supreme Court will be discussing two of the biggest gay rights cases ever before them. This is a time of jangled nerves for many gay rights activists (and just ordinary gay people), because you never know what SCOTUS is going to do. Will they rule on the merits of the case, or will they bend like a legal pretzel in order to arrive at the decision they want to deliver? Honestly, it could go either way. But I believe that if they actually rule on the merits, we're in good shape.

One good sign is that the pro-marriage equality side has some of the best legal minds around arguing for it, and they are from both the left and the right side of the aisle. Meanwhile, it would seem that the badly named "protect marriage" side has a second-stringer running things. Not sure what that's about, but there you go. And much like their really pathetic case in the original Proposition 8 case, their arguments are really, really bad.

Legally "gay married" for 5 years. No kids.
What does this argument have to do with me?
The National Organization for Marriage (NOM) and their affiliated  groups have been all over the place with their arguments since all of this started, sometimes distancing themselves from true homophobia, and other times dripping with it. But they've recently thrown all of their eggs into one basket, and have pinned all of their hopes on one argument: that marriage is for the conception, rearing and development of children, period. According to this argument, gay people should not be allowed to get married, because they can't create children exclusively within their relationship. Also, according to this argument, letting gay people marry deprives children of either their mother or their father.

I know, it's a head-scratcher. First of all, it's a straw man, since nobody anywhere has claimed that gay couples can produce biological children without outside help. But there are just so many problems with the argument on so many different levels, it's difficult to get them all out. But I'm going to try:
• Infertile and older couples are allowed to marry.
• Many married couples have no intention of having children.
• People can have children without getting married.
• Many gay couples have no intention of having children.
• Many straight couples adopt children, or use in vitro, just as gay couples do.
• Not allowing same-sex couples to marry won't stop them from being couples.
• Not allowing same-sex couples to marry won't stop them from sometimes raising children.
• Not allowing same-sex couples to marry won't magically make those with children suddenly have opposite sex parents in the picture.
• Stopping gay marriages won't give all children two opposite sex parents.
• "Protecting marriage" from gay people does nothing to strengthen heterosexual marriages, prevent divorces, or do anything whatsoever for straight peoples' children.
• Same sex marriages are not some imaginary hypothetical. There already thousands of legally married gay couples in America. What harm have they done?

There are other problems with the argument, such as the fact that it is insulting to adoptive parents. It is also counter-intuitive that they make such a strong argument that marriage is good for children, while depriving the children of gay parents the same thing. It's a twisty, goofy argument, and I find it hard to believe they've put all of their stock into it. It is also an argument that failed already in California. Even their best experts--such as they were-couldn't sell it.

So, I'm hoping that the Supremes are not too beholden to Antonin Scalia or Samuel Alito, or rather, that maybe those guys aren't as party line as we expect them to be. Because the Defense of Marriage Act is so clearly unconstitutional, and Prop 8 was too. And there has to date been no logical or reasonable argument for either. The fact that we're down to "kids need a mommy and daddy" when the argument isn't even a good fit? It just seems desperate, and it would be appalling if it worked.


Supreme Court Preview: Roberts, Kennedy, and their Court - Some Final Thoughts on Impacts and Outcomes

On Tuesday and Wednesday, March 26 and 27, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. In this post, some general questions to consider. . .

Read more: Towleroad

UPDATE: If the internets are to be believed, the likely date of the Supreme Court's decision on Prop 8 and DOMA will be on June 27, 2013. That, coincidentally, is my fifth wedding anniversary. How bizarre is that?

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