Listening to the oral arguments for the DOMA and Prop 8 cases, I was surprised by what the Supreme Court was entertaining.
This isn’t to say that the issue of marriage equality isn’t incredibly important, because of course it is. However, the Court usually has not entertained emotional arguments as more than flourish. Hearing some other oral arguments on oyez.com can solidify that for anyone who is curious.
The arguments started off as usual: lots of people being interrupted by the Justices.
Then we get to the weird stuff: Justice Scalia handing over arguments to the DOMA or Prop 8 defendants; arguments on child-rearing, ‘gay parenthood’ and the question that probably made a lot of people slap themselves: “When was it not okay to discriminate based on sexual orientation?” Frankly, as surprising as the
Court was, the people making the arguments were even more surprising.
For one, with Prop 8, someone needs to give these guys a history textbook that didn’t come from Texas. Homosexual marriage is very old in some cultures, including in Native American tribes (who, you know, were the original Americans).
So the assertion (made by Justice Alito, then co-opted by the counsel) that gay marriage is newer than cellphones or the Internet is just bogus, therefore null and void. Is gay marriage new to modern-day America?
Perhaps. But that doesn’t mean it isn’t a tale as old as time.
Also, what marriage means is quite a funny topic. If you look at the beginnings of patriarchal marriage in general, it had a lot to do with property and ownership (including ownership of the wife’s body) in the olden days. If we were to justify defining marriage narrowly on the basis that it ‘was that way before,’ why should we bother with other changes like anti-marital rape laws, or anti-domestic abuse laws? I mean when exactly did it become not okay for a man to beat and rape his wife? (So much sarcasm it hurts.) They should, based on precedent, be left alone, right?
I’m not going to bother with the fertility argument. Justice Kagan nipped that one in the bud already.
There were weak arguments on both sides: heartstrings don’t count for much (just ask Asian-American families who remember being sent to internment camps in the ‘40s). As much as I agree with the sentiment that it’s discriminatory for no real purpose and ‘not fair,’ that doesn’t hold up much in Court.
The truth is these anti-marriage equality laws are the newbies on the block. Before DOMA, all contracts, even those that were made before the revolutionary war, were upheld by the federal government in all states.
Marriage licenses for homosexual couples are one of the only contracts that are not upheld in each state. The basis for this change in practice was due to the ‘moral opposition’ of many government officials.
Someone’s personal objections are not a strong enough basis for reversing all legal precedent on almost every other kind of contract (including marriage licenses in general). Is it an emotional contract? Of course. But it’s still a type of legally binding contract (with consequences if you get a pre-nup) issued through a secular government.
Cite as much precedent you want on the nature of contracts, and there you go. If they say marriage is ordained by God, ask them which god is in the Constitution. I mean, if it’s my God then polygamy is legal too.
On Prop 8: In a democracy all ideas can be brought forth, Prop 8 takes on a political question. That is an obstruction of the idea of representative government. Alexander Hamilton may not like a “homosexual faction” but guess what, everybody gets to be represented.
Although if a point could be made for not having marriage equality up to the public, it is this: should the marriage rights of a population rest on whether everyone else agrees with it? If so, should we not start having panels with character witnesses for every couple who decides to get married gay or not?
Just think about it.