As two landmark cases make their way to the U.S. Supreme Court this week, supporters of marriage equality are optimistic. A new Washington Post-ABC poll found that 58 percent of Americans surveyed think that lesbians and gay men should be allowed to marry, a record-high number and a complete reversal of poll results from just 10 years ago. Leaders on both sides of the political spectrum have expressed support for marriage equality, and a Republican GOP report released last week goes so far as to identify “the treatment and rights of gays” as “gateway” issues for young voters, who are increasingly turned off by the party’s opposition to same-sex marriage.
If you want more cause for optimism, you should look closely at the arguments that will be presented at the highest court in the land on Tuesday, March 26 in the Proposition 8 case and on Wednesday, March 27, in the Defense of Marriage case. In particular, it’s worth taking a look at the arguments against marriage equality to see just how flimsy they are and why they haven’t held up well in other courtrooms.
Here are the three main arguments made to oppose same-sex marriage rights, along with the reasons we believe they should fail:
1. Barring Lesbians and Gay Men from Marriage Will Preserve “Traditional” Marriage.
The argument: This claim, made by proponents of Proposition 8 and the federal marriage ban, seeks to enshrine one model of marriage as the only acceptable version on the grounds that this model has “always” existed and that allowing same-sex couples to marry will break radically with established tradition. It hinges on a circular idea and attempts to claim that marriages between same-sex couples simply does not fit the definition of marriage–when defined as being the union of one woman and one man.
Why it should fail: First off, as the legal team representing Edith Windsor makes clear (PDF), “It is well settled that ‘tradition’ alone cannot justify the government’s discrimination against a class of individuals.” Second, as the Prop 8 plaintiff’s brief notes (PDF), “Marriage is no longer defined in this country by the traditional gender roles of the respective spouses.” Third, as pretty much any woman or man on the street will tell you, a gay married couple living on your block will not make heterosexual neighbors any more likely to marry or divorce.
2. Restricting Marriage to Heterosexual Couples Will Promote “Responsible Procreation.”
The argument: For this one, it’s best to let the proponents speak for themselves. Here is how the Proposition 8 defenders explain why only heterosexuals should be allowed to marry (PDF):
[A]n overriding purpose of marriage in virtually every society is, and has always been, to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.
Why it should fail: The idea that prohibiting lesbians and gay men from marrying will make heterosexual couples more likely to bear children in wedlock simply makes no sense. Underlying this view is a seriously intrusive idea about the state’s ability to interfere in the procreative choices of its citizens. Given that the government neither requires that couples show proof of fertility in order to marry nor that pregnant women be forced to marry against their will, this argument, if successful, might pave the way for a host of regulations that would radically transform the institution of marriage–for worse, not for better. What both Proposition 8 and DOMA actually accomplish by preventing the marriages of committed same-sex couples is to lessen the number of children raised by married parents.
Above all, this argument should fail because, as law professor Courtney G. Joslin shows in a recently published Iowa Law Review article, “Responsible procreation” is based on myth, not history and tradition.” According to Joslin,
Congress has not and does not condition the receipt of federal family-based benefits on biological parent-child relationships. To the contrary, Congress long has implicitly and explicitly extended such benefits to families with children known to be biologically unrelated to one or both of their parents.
3. We need to proceed with caution because marriage equality takes us into “uncharted waters.”
The argument: This is one of the centerpieces of the Prop 8 proponents’ case–that we simply can’t know what harms will be caused by allowing lesbian and gay couples to marry. They contend that “redefining marriage as a genderless institution” could be highly problematic for the institution.
Why it should fail: When asked, in the 2010 Proposition 8 trial what possible harms marriage equality might cause, the lawyer arguing in favor of the marriage ban famously stammered, “I don’t know. I don’t know.” The idea that allowing same-sex couples to marry is a new thing becomes less tenable as time goes on and evidence continues to show the benefits rather than the harms this right brings about, especially for children. If, as a 2010 study showed, lesbians make particularly good parents, then slowing down the progress of marriage equality is the risky thing to do!
It probably won’t help the Prop 8 proponents that their star witness, David Blankenhorn, who testified precisely on this point, has since recanted the views he stated during the trial. “[I]f fighting gay marriage was going to help marriage over all,” Blankenhorn said in a New York Times op-ed last summer, “I think we’d have seen some signs of it by now.”
Of course the arguments that we won’t be hearing at the Supreme Court are that homosexuality is immoral and that lesbians and gay men will contaminate marriage if they’re allowed to enjoy this right. Blankenhorn puts it perfectly in the op-ed about why he changed his mind about the issue:
In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens. And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.
In both the Proposition 8 and the DOMA cases, the record of that animus will be hard to cover up. The campaign to pass California’s marriage ban relied heavily on religious groups with a history of hostility toward gay rights (see the Feminist Majority Foundation/National Organization for Women amicus brief submitted to the Supreme Court in the Prop 8 case for a discussion of the role religion played in the campaign). As the brief filed in support of Edie Windsor’s case notes (PDF), DOMA was “intended to express the ‘moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.'”
Ultimately, the biggest argument that opponents to marriage equality are making is that marriage bans are constitutionally defensible. If the concept of equal protection has any meaning, however, then hostility to lesbians and gay men cannot be supported by the state. Marriage is a fundamental right, and same-sex couples deserve to be treated as equal under the law.
History will be made this week, and we have every reason to believe that the arguments for marriage equality will win.
The Supreme Court will release audio of the proceedings by 1 p.m. EDT on Tuesday and 2 p.m. EDT on Wednesday (SCOTUS audio site). The decision will be announced by the end of June.