Gay Marriage has come a long way over the past years. It seemed the 2012 election especially spelled the turning of the tide toward equality for same-sex couples. The past had been shaky for voting in gay marriage, but finally it won in 3 states, Maine, Maryland and Washington state. Minnesota voters also weighed in by defeating a possible “traditional” marriage amendment. In addition to all that, we elected our first openly gay U.S. senator, Tammy Baldwin.
Factually, the best is yet to come. History seems to be on the side of same-sex marriage. It’s just a matter of time. Advocates have been wondering, though, whether that time would come much sooner than anyone had predicted. Back in December the Supreme Court decided it would take up two separate cases on the matter. One is on California’s Prop 8, which could either accept or reject a constitutional right to same-sex marriage. The other is on the Defense of Marriage Act, the law signed by Bill Clinton that says no state is required to recognize a same-sex marriage from another state, and for federal benefit purposes same-sex marriage is not recognized.
People are wondering whether Chief Justice Roberts will be primarily concerned with his legacy or what one normally thinks of as conservative principles. What makes speculation on this so interesting is that he actually did pro bono work on a landmark gay rights case. That might not mean anything, though. He could have just been representing his clients to the best of his ability. We don’t really know. There’s also a lot of wiggle room to decide. It could push same-sex marriage as a right throughout the country, or rule much more narrowly for California.
The arguments the lawyers defending DOMA and Prop 8 came out last week, and the justification feels especially bizarre. Here’s what Paul D. Clement, lawyer for the House Republicans wrote:
“[Traditional Marriage Laws] reflect a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies. Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society.”
That’s right, the argument is no longer that same-sex marriage is immoral. It’s not that same-sex marriage would be a menace on our society or a slippery slope to “man on dog,” or marrying a table or a clock. No, now it has nothing to do with the apparent ridiculousness to conservatives of same-sex people being able to fall in love. It doesn’t even have anything to do with the myth that children are better with opposite-sex couples than same-sex ones, something which has been disproven. Now the argument is that opposite-sex coupling is actually inherently so dangerous to society as a whole that we need to incentivize them to bond more permanently. We can’t trust them to figure things out themselves. The idea is, apparently, that same-sex couples have to plan to have a child, and thus they don’t need marriage. Shall we call this the shotgun traditional marriage defense?
My first thought is that this isn’t really an argument against same-sex marriage. It’s more of an argument against abolishing marriage and the benefits bestowed from it altogether. The incentive to bond up for opposite-sex couples would still be there if we allowed their same-sex brethren to marry. It wouldn’t go anywhere. There doesn’t seem to be an argument in here on why they need more incentive. Why do they need a one-up on same-sex couples? Does it hurt their pride so much that they wouldn’t get special treatment under the law that they just wouldn’t pair up for those benefits at all? Is this saying that if we allow same-sex marriage, opposite sex couples would no longer want tax benefits or hospital visitation rights? Hell, they wouldn’t even want to bond up for the dual salary benefit, either?
This isn’t the first time this defense has been used, though. It was used in Morrison v. Sadler in Indiana and Hernandez v Robles in New York, and both times it won, unfortunately, though possibly not quite solely on its own merits. I think Judge Friedlander summed this new stance up pretty well in his concurring opinion (one he gave “in large part upon a recognition of the daunting burden that faced the Plaintiffs in their effort to have the [law] declared unconstitutional”):
Pursuant to this rationale, the State presumably could also prohibit sterile individuals or women past their child-bearing years from marrying. In fact, I would assume the State may place any restrictions on the right to marry that do not negatively impact the State’s interest in encouraging fertile, opposite-sex couples to marry. Yet, I.C. § 31-11-1-1’s narrow focus is to prohibit marriage among only one subset of consenting adults that is incapable of conceiving in the traditional manner – same-sex couples. Such laser-like aim suggests to me that the real motivation behind I.C. § 31-11-1-1 might be discriminatory.
If the idea of these arguments holds out ultimately we could restrict marriage to only those who can reproduce. In effect marriage turns from an institution of devotion between two people building a family to a sort of social welfare program that has more in common with Social Security than to the institution Christians seem to want you to think their God invented. In that way, wouldn’t it be wasteful resources to incentivize those who won’t be procreating? Time to bust out those fertility tests and cut some government waste! I’m sure there’s an argument in there for freeing up money to create jobs, too… The key, realistically, is in Friedlander’s last sentence. The fact that we don’t do any of these things, but merely restrict it to opposite-sex couples shows the true motivation is likely discriminatory rather than for incentive.
In addition to all that, this new justification says nothing about those children out there who need to be adopted, or already are adopted by same-sex couples. If you accept the premise that out of wedlock child rearing is bad, then isn’t it also bad to restrict those who can adopt children from the institution? Even with “substantial advanced planning,” things go wrong.
It also doesn’t say anything about why we would connect things like hospital visitation and the ability to make decisions on health care for your partner if they’re incapacitated to marriage if the sole purpose is to incentivize more responsible child rearing. These should be rights bestowed upon committed couples, whether fertile or not, because they have far more to do with the direct relationship between each other than they do with any offspring they might have.
In the end we’ve accepted that a family can mean many things to many people. We accept that some people will choose adopt, others will have children as a bonded couple, and still others cannot or just don’t want to have children but still choose to create a family of two. This is all well and fine, and I think our society gains in recognizing this love and commitment between people. It also gains in conferring to them benefits which seem very logical in any pair bonding situation. Things like the aforementioned hospital visitation or even insurance coverage can and do apply in all of these situations. I just hope as flimsy as these arguments seem to be, they won’t be defeated another time, and we can finally keep our stride into a future where we have marriage equality.