This week the Supreme Court heard oral arguments for the cases involving California's Proposition 8 and the federal Defense of Marriage Act (DOMA), both of which restrict marriage rights to male-female couples.
On Tuesday I read through the transcript of the Prop 8 arguments, and I have a few thoughts I want to share.
First, I thought it was great that the proponents' attorney, Charles Cooper, attempted to make the "marriage is for procreation" argument and was almost immediately laughed at by trying to suggest, to a bunch of Justices whose ages range from 52 to 80, that it's actually rare for couples over the age of 55 to be unable to procreate, followed up by a joke from Justice Scalia about whether couples applying for marriage licenses should have to take a fertility test.
There was some discussion between Cooper and Justice Kennedy about whether the issue at hand is one of gender or sexual orientation, and Cooper said it was an issue of sexual orientation rather than gender; that is, the couples being excluded from the institution of marriage in this case are excluded as a result of their sexual orientations rather than their genders. The opponents' attorney, Ted Olson, picked up this same thread and argued that Proposition 8 excludes "gays and lesbians" from the institution of marriage.
I disagree. A woman who is bisexual is allowed to marry in California if her partner is male, and not allowed to marry if her partner is female, and her sexual orientation does not change. For that matter, a woman who is gay is legally allowed to marry if she's marrying a man. The government doesn't ask about individuals' sexual orientations when they are applying for a marriage license; they ask about the legal gender of each. The question the Court has to answer is not "Should we allow gay people to marry?" or "Should we allow bisexual people to marry?" The question is "Should two men, or two women, be allowed to have their relationship legally recognized as a civil marriage?"
On the other hand, by classing this as a case of excluding a select group ("homosexuals") from an institution, this allowed Justice Sotomayor to grill Cooper about whether there was justification for excluding this group from anything else:
Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the government could make? Denying them a job, not granting them benefits of some sort, any other decision?To which Cooper had to say no.
There was some scuffling between Justice Scalia and Olson about when it became unconstitutional to prohibit "homosexual couples" from getting married. Justice Scalia insisted that he could not answer the question before the Court without knowing the exact date at which this prohibition went from being constitutional to being unconstitutional. Olson tried to respond in several ways, first with a comparison to interracial marriages (Scalia said that was easy -- it became unconstitutional to prohibit interracial marriage after the Equal Protection Clause was adopted), then by attempting to say it became unconstitutional once we as a culture recognized sexual orientation as a fixed characteristic of individuals, which of course he couldn't pinpoint to a specific date, and therefore did not satisfy Justice Scalia.
This, to me, is similar to discussions about supposed mentions of homosexuality in Scripture, those verses which focus on particular sexual behaviors. No one writing those verses had a conception of someone having a fixed sexual orientation toward people of another gender or multiple genders. There are no references in Scripture to the morality of a loving married relationship between two people of the same gender because such a thing was unknown to the writers of Scripture, and only through a fairly recent accumulation of research and the ability of people to be open and honest about their experiences of attraction have cultures began to shift their thinking on this.
So Olson is right that until we as an American culture began to grasp that there is a diversity of fixed sexual orientations, there could be no widespread conception of bestowing marriage rights on same-sex couples. Only then did the withholding of such rights become apparent and could be seen as discriminatory. However, Justice Scalia is looking for something legal, rather than moral or conceptual, to focus on, which is a problem: How can we define the previous constitutionality of something that the writers of the Constitution, and interpreters (Justices) of past generations, had not even conceptualized, let alone ruled on?
Finally, Justice Roberts asked a question to General Donald Verrilli, who spoke after the two attorneys as an amicus curiae ("friend of the court"), which I want to address because I don't think Verrilli did so completely (which I don't blame him for -- I would not want to be thinking on my feet while the Justices shot rapid-fire questions at me and constantly interrupted me):
It seems to me that your position that you are supporting is some internally inconsistent. We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed. And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage. Which is it?Justice Roberts sets up a false dichotomy here. He sets up two possible scenarios, one in which children are harmed by having married same-sex parents and one in which they are harmed by not having married same-sex parents. But there are two main problems with this.
The first is that same-sex couples have children already, whether or not they have the legal protections of marriage or the legal right to both be called parents of their child(ren). Whether or not same-sex couples can have legal marriage rights, and whether or not same-sex couples can have children, are two completely separate questions, but Justice Roberts treats them as one and the same. This has been an ongoing issue in debates around same-sex marriage, in particular opponents of same-sex marriage speaking bizarrely as if the gender of a given child's parents is somehow determined by the legal recognition of same-sex relationships.
The second problem is blurring the issue of "harm" to children. Roberts references the evidence that there is no harm done to the children of same-sex couples, which is a matter of comparing children of opposite-sex couples and same-sex couples and looking for differences. And what this research finds is that the gender of their parents (in two-parent households) has no significant difference on the well-being of these children. On the other hand, the lack of legal protections and rights for their parents' relationship has the possibility of negatively affecting the children, and the fact that their parents are treated as second-class by the government validates any social stigma that might affect their family from their surrounding community.
In other words, the only disadvantages children have being raised by same-sex couples come from the government itself and the societal norms that stem from it, and thus protecting their families would have a net positive result for the children of same-sex couples since their parents themselves do not cause harm or disadvantage to them solely by being a same-sex couple. Trying to "protect" children from discrimination and bullying by discriminating against their parents' relationship hurts rather than helps the situation!
I think it's a shame that so much was left out in Tuesday's discussion; e.g., differentiating between sexual orientation and the gender of one's partner, exploring what these laws mean for people who don't fit the gender binary. But I also understand that a collection of Justices in their 50s through 80s who don't even understand why the term "homosexuals" is a problem might not have been able to deal with a discussion about "what gender actually means" in the very few minutes allotted to each attorney.
I have no idea what the Court's eventual decision will be on this, and I haven't had a chance to read the transcript from the DOMA oral arguments yet. I wanted to share these clarifications not because I think they will somehow affect the Justices' understanding of the cases before them, but because the discussions that happened in court mirrored a lot of debates around same-sex marriage that I've heard played out over the past decade. As with anything, I think it's extremely important to be clear about terms, keep facts straight, and avoid logical fallacies when discussing such important issues that deeply affect real people's lives.
What reaction did you have to this week's oral arguments? What do you think will happen?