Will the Supreme Court reinstate the “separate but equal” doctrine that was overturned in 1951?
The Supreme Court of the United States today takes up the first of two cases involving the rights of gays and lesbians to marry. Today, they heard oral arguments in Hollingsworth v Perry, the challenge to California’s Prop 8, banning same sex marriage. On Wednesday, the justices will hear arguments in United States v Windsor, the challenge to the Defense of Marriage Act (DOMA).
It boils down to this: Should gays and lesbians have the same rights as straight people? Or should we as a society be allowed to discriminate against them because of who they are? In reality it is an issue that has implications that extend far beyond whether or not the marriages of gays and lesbians should be legally recognized. It is no different than the civil rights fight of the 60’s, where African Americans were routinely discriminated against for no other reason than the color of their skin.
This is a losing battle for social conservatives who continue to want to drag this country back to the 1950’s, and they know it. Our society has evolved on marriage equality, doing almost a complete 180 even since Prop 8 passed with just over 52% of the vote in 2008, despite polling showing at the time that 51% of Californians accepted same sex marriage. Prop 8 reinstated the ban on gay marriage in California that had been overruled by state courts.
Recent polling, however, shows that Californians want a “do-over.” A Field Poll released last month found that 61% of California voters now support the rights of same sex couples to marry and start their own families.
The arguments in favor of marriage equality are actually staggeringly simple: If, as the Declaration of Independence states, “that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness,” then it stands to reason that all men (and women) must be treated as equal, whether they be black or white, male or female (something that has evolved within our society, yet for some reason we still struggle with it—see the Lilly Ledbetter Fair Pay Act of 2009), gay or straight.
But as simple as the arguments in favor of marriage equality may be, that’s just how inane the arguments against marriage equality are. The principle reasoning is that same sex couples should be denied the right to have their unions recognized under the law because they cannot procreate—they cannot produce children as a result of the marriage.
“The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus the purpose of marriage and the definition of marriage away from the raising children and to the emotional needs and desires of adults, of adult couples,” argued Charles Cooper, the attorney representing the proponents of Prop 8 to the Supreme Court.
In other words, the only logical purpose of marriage is to produce kids. Women in straight marriages are nothing more than baby incubators and caretakers.
“Suppose a State said, Mr. Cooper, suppose a State said that, because we think the focus of marriage really should on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?” asked Justice Elena Kagan.
“No, your honor, it would not be constitutional,” responded Cooper.
“Because that’s the same State interest, I would think, you know,” said Kagan. “If you are over the age of 55, you don’t help serve the Government’s interest in regulating procreation through marriage. So why is this (same sex marriage) different?”
“Your Honor, even with respect to couples over the age of 55, it is very rare that both parties to the couple are infertile,” replied Cooper.
“I can just assure you,” retorted Kagan, “if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.”
This is the crux of the matter according to “traditional marriage” defenders.
“The issue before the country is do we have a compelling interest in strengthening and supporting the durable, enduring, and uniquely complimentary procreative union of a man and a woman,” said Ralph Reed, the head of the Family Research Council on “Meet the Press” Sunday, arguing against same sex marriage.
By this definition, only marriages that produce children should be recognized under the law. And therefore, heterosexual couples that do not intend to have families of their own should not be allowed to marry. It further stands to reason that couples who do intend to marry, should this definition be accepted, would be required under the law to produce kids. Then the question becomes how many kids should they be required have to have? Are we to go the opposite direction of China, where, in an effort to control an exploding population, families are permitted no more than one offspring?
And what of couples that are sterile and for whatever reason are not capable of producing children? Should they too not be allowed to marry? What would this mean for adoption laws? Who would be legally allowed to adopt parentless kids? Would adoption, by extension, be outlawed altogether? Do people get married—or, more accurately, should people only be allowed to marry—for the sole purpose of having kids? Or are there other, more intrinsic, legal, or other reasons for two people to want to bind their lives together in marriage?
Then there’s this: It wasn’t all that long ago that mixed race couples in many states were legally forbidden to get married.
Times are changing. New polls indicate that 63% of Americans now feel that it is acceptable for gays and lesbians to marry. Our elected politicians across the board have begun to accept that fact, Democrats and Republicans alike.
“I believe that every loving, committed couple deserves the freedom to marry,” said Congressman Scott Peters in a released statement. “The ability of an individual to care for another person or to be a good parent is not determined by sexual orientation. I’ve been an advocate of marriage equality for more than a decade, and I will continue to fight for equal rights in Congress. I look forward to the day when we cease these archaic battles and accept that all people are created equal and deserve to be treated equally under the law.”
“My message to the Justices is very simple: America is ready,” said City Council President Todd Gloria, who himself is openly gay. “Like millions of LGBT Americans and our straight allies, I am anxious for the Supreme Court to strike down Proposition 8 and DOMA and add to the Court’s long history of ensuring equality for all citizens.”
“I have come to believe that if two people are prepared to make a lifetime commitment to love and care for each other in good times and in bad, the government shouldn’t deny them the oppoutunity to get married,” said Ohio Republican Senator Rob Portman, whose son came out as gay two years ago, in an op-ed.
The case law would seem to be stacked against opponents of marriage equality. In Brown vs. the Board of Education the Supreme Court ruled that, in regards education, “separate but equal has no place,” and that schools segregated on the basis of race are inherently unequal. Extending that logic to same sex couples, it stands to reason that treating gay couples differently than straight couples is by definition treating them as inferior.
This is a landmark occasion. This is the civil rights issue of our time. The 1960’s once and for all brought equality in civil society for African Americans. Could 2013 bring the same for LGBT people? Will the Supreme Court keep up with public sentiment, or will it unravel all of the advances this country has clawed out in the last 60 years in advancing the rights of all people to be treated equally under the law?