This is it! The curtain rises on oral argument before the U.S. Supreme Court, with lawyers for gay couples (yay) and the states (boo) tussling over whether the Constitution’s guarantee of due process and equal protection extend to everyone, or just to straight people.
It’s going to fly by in a jiffy, and the challenge for both sides is to pack as much persuasion into their allotted times, which range from 15 to 45 minutes. Fortunately, the arguments being put forward by the states are asinine. Seriously, they’re just insane. We would want to trade places with those lawyers for all the money in the world, because they’re basically marching into the highest court in the land with some of the dumbest arguments ever written.
Here’s what to expect.
The States’ Arguments
Tradition! Procreation! States’ rights are more important than the Constitution! That’s pretty much what it boils down to.
Of these, the most persuasive is the appeal to states’ rights. We have to admit, it sounds tempting: Shouldn’t each state be allowed to decide what is or isn’t legal? And sure, it sounds tempting… but as soon as you think about it for more than a few seconds, you realize that it makes no sense at all. What if states had been allowed to do that with interracial marriage? Or when making treaties with foreign countries? Or what if the federal government had no authority over highways, and I-5 just stopped at the border of Oregon? Some things have to be consistent from state to state.
And when you look at the states’ briefs, the argument simply falls apart. “When courts override the democratic process with such insubstantial constitutional underpinnings, it is hard to imagine what social or political question might not be the subject of the next litigation campaign,” Michigan wrote. They’re saying that the people of each state should be allowed to vote on everything, even things that violate the Fourteenth Amendment. If that was really the case, we might still have slavery in Alabama.
Most of the other claims are even more absurd. Banning gays and lesbians from marrying “increases the likelihood that biological parents stay together even when their emotions fade, and reducing the risk that any child will be born out of wedlock,” says Michigan. Uh huh. Good luck defending that one.
Ohio tries to claim that marriage equality for gays and lesbians is a “special right,” that marriage is somehow different for LGBTs than it is for straights. And yeah, there are a few differences in the pants. But so what? Why do genitals matter?
Tennessee made a similar argument, pointing out that the Supreme Court has only ever recognized that marriage between a man and a woman is a fundamental right. And that’s true… but it’s also kind of cheating. The reason the Supreme Court’s never ruled on marriage equality is that social stigma prevented a case from coming to them before now. Sure, they’ve ruled (fourteen times) that marriage is a fundamental right; and sure, all of the couples in those cases were straight. But there was nothing fundamentally straight about the cases themselves. None of those cases hinged on gender, and there’s no reason to think that the justices meant to add to the end of all fourteen decisions, “but only if one of the people has a penis and the other has a vagina.”
Tennessee’s brief gets even more heartbreaking: they say that gays have no right to “remain married,” so the state ought to be able to declare them unmarried if it wants to. Ouch.
The Couples’ Arguments
Arguing for the couples will be the heroic Mary Bonauto, who won the DOMA case two years ago and has been one of the chief architects of marriage equality in the courts. (Evan Wolfson deserves a lot of credit as well, as do some of the great unsung pioneers like Faygele Ben Miriam.) She’ll be joined by Douglas Hallward-Driemeier and U.S. Solicitor General Donald Verrilli, and all three attorneys have some rock-solid arguments. Scalia’s going to have to tie himself in knots if he wants to escape their logic.
Here’s what their briefs come down to: they’re not asking for anything new. They don’t want the Supreme Court to invent “gay marriage.” They just want marriage, the same thing that everyone else already has access to.
And that’s why the Fourteenth Amendment is so crucial, since it’s the part of the constitution that says that everyone must have equal access to, and protection of, the law. That’s important, because the states’ briefs argue that “gay marriage,” as a legal construct, would be something brand new and never before imagined. And while we might use the term “gay marriage” in a colloquial conversational sense, in a court of law LGBT couples’ marriages should be treated as exactly the same as anyone else’s.
Of course, Loving v. Virginia is widely cited by the couples. That’s the case that overturned racist laws against interracial marriage, and it’s cited as proof that a right light marriage, once it’s extended to one group of people, can’t be narrowly defined to exclude others.
And then we get to the meat and potatoes: “Excluding a class of people from that institution, therefore, can hardly be considered rational unless it furthers some substantial goal of the state.” Yup! And exactly what “substantial goal” is marriage going to advance? Who knows. We really hope the Justices press the states on that question, because we would love to see them squirm and try to come up with an answer.
Meanwhile, the Michigan couples argue, “This exclusion deprives same-sex couples of the dignity and common understanding that comes only with marriage as well as the substantial network of protections and reciprocal responsibilities afforded to married persons and their families. It harms children financially, legally, socially and psychologically.”
The couples also point out how flimsy the evidence is that LGBT parenting is inferior to straight parenting. Oh, sure, there are studies cited by the states that purport to show that gay kids need straight parents. But those are phony studies made up for only one purpose: justifying bigotry. This is another area in which we hope the Justices press the states’ attorneys, because it would be amazing to have it on the record that their so-called “science” is junk.
So Now What?
Now you sit and wait. And if you really want to do something productive, change your Facebook profile picture to a red equals sign. That’s it — there’s really nothing left but a wait of several weeks for the justices to issue their ruling. In the mean time, litigation might inch forward in a few states; and there will definitely be some gigantic rallies once the ruling comes. And then there will be equality. For everyone.