Last week, the Supreme Court heard oral arguments in two cases relating to gay marriage. The smart money seems to be on SCOTUS striking down the Defense of Marriage Act, and throwing out the case on California’s Proposition 8 altogether, thus letting the lower court ruling enabling same-sex couples to get married stand.
Although the court is hard to predict, most court watchers believe it will punt its responsibility to protect the rights of all citizens and allow the lower court ruling to stand, thus allowing gay marriage in California, but not ignoring the 14th Amendment guarantee of equal protection for all citizens.
Proposition 8 passed in the 2008 election, and it is remarkable how far the politics of gay marriage have changed in the last four years. You may recall that in the 2008 Democratic primaries, the debate was mostly over whether to allow civil unions, and those of us who supported civil unions as a move in the right direction were considered the utopia-seeking leftists. The question was not even asked on the Republican side.
One party has moved very far on the issue, and now stands in favor of gay marriage. The Republicans maintain the same homophobic position now as then. Congressional Republicans opted to spend your tax dollars to hire a counsel to defend DOMA, money which will prove to have been wasted when SCOTUS declares it unconstitutional anyway.
In a party still firmly committed to public funding of efforts to keep our country discriminatory toward homosexuals, the supposed paragon of the forward-looking Republicans stands virtually alone. Sen. Rob Portman, R-Ohio, changed his mind on gay marriage because his son came out publicly as a gay man. While I welcome Sen. Portman to the team, I don’t feel that he is owed much applause for ceasing to be a bigot against his own family member; he has known his son was gay for some time, but his position has just now changed. This is a profile in courage the justices can only hope to match.
About the only legal argument remaining to the defenders of Proposition 8 last week was to claim that the state had an interest in regulating marriages for the societal interest in responsible procreation. This is transparently silly. I am not required to help conceive children at all if I marry a female. In fact, she or I can be entirely infertile, by choice or by bad (some might say “good”) luck, and there is no bar to us being married.
I can marry as many infertile women as I want, so long as I serve those sentences consecutively and not concurrently. But if I decided to marry another male, I would be prevented because the same number of children would result, no matter how frequently we tried.
Opponents of gay marriage should take solace in their last line of defense. As always, if you don’t like gay marriage, you don’t have to get one. The First Amendment guarantees that your church, mosque, synagogue, temple, coven or book club can be as bigoted or as inclusive as it wants.
Just as no one forces churches to recognize divorce or interracial marriages, we can’t force recognition of same-sex marriages. This is only a plea for the civil right of marriage, and the recognition of citizens’ unfettered right to an institution mentioned more than 1,100 times in just the Federal code.
Since Republicans will continue to try to block equal rights, the best thing the court could do for the Republican Party would be to find a general right to marriage (something that is already very close to being the law for straight people; states can’t bar incarcerated felons from getting hitched, except to their cellmate).
A solid majority of Americans is now in favor of equality, and since there is an age gradient, with younger generations being much more accepting, demographics are destiny. This shouldn’t matter; we should not be in the business of voting on each other’s civil rights. But when we lose this battle in the courts, those of us in favor of treating all citizens equally will win the war at the ballot box, eventually.
Brad Erthal is a doctoral student studying economics. His column runs on Tuesdays.
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