On Tuesday and Wednesday the Supreme Court lost its virginity on the issue of same-sex marriage in a big way. Challenges to California’s Proposition 8 and the Defense of Marriage Act (DOMA) forced conservative lawyers and judges to defend what most people have decided is indefensible — state-enforced bias against gay couples.
However, lawyers representing a group opposing gay marriage and House Republicans (which is redundant) are trying to make legally relevant arguments to continue that bias — even though huge majorities of people under 30 and a solid majority of Americans under 50 see equal marriage as the right thing to do.
While no one dared to make the blatantly unconstitutional argument popular in some dark circles that gays are hell-bound sinners who should be doomed to loneliness, it did get pretty bad.
Here are the five worst arguments that were made against same-sex marriage in front of the highest court in the land.
AP Photo/Pablo Martinez Monsivais
Marriage Is Only For Breeding
As part of the GOP’s effort to reach out to women, Charles Cooper, the lawyer arguing on behalf of proponents of Proposition 8, ended up basically arguing that women incapable of breeding because of biology or age shouldn’t be able to marry. Of course, the argument that marriage is for “responsible procreation” suggests that men who cannot produce children shouldn’t be able to marry either. But as many men can produce children for most of their lives, this laughable argument is a nice addition to the War on Women.
Marriage Is Special So We’re Allowed To Discriminate
Justice Sonia Sotomayor dismissed the argument that marriage is specifically designed for procreation by asking petitioners a simple question in several ways:
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?
Cooper had a simple answer: “Your Honor, I cannot.”
Gay Parents Suck
When Justice Elena Kagan asked for evidence that gay marriage would “harm the institution of marriage,” Cooper wanted to dodge the question. But Justice Antonin Scalia — who is famous for saying terrible things about gay people — wanted an answer. When he didn’t get one, he offered his own:
Mr. Cooper, let me — let me give you one — one concrete thing. I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s – there’s considerable disagreement among — among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not. some states do not — do not permit adoption by same-sex couples for that reason.
Actually there’s no evidence that same-sex parents have a measurably negative effect on children. What Scalia was making was an argument against poor marriage, as economic status has much more of a noticeable impact on marriage. But even Scalia wouldn’t make that argument in public.
AP Photo/Dana Verkouteren
Banning Same-Sex Marriage Is Like Helping Freed Slaves
Paul Clement — the attorney representing House Republicans in favor of wasting taxpayer money to defend DOMA — had to reach all the way back to just after the Civil War for a case in which the federal government intervened in marriages. Of course, his example was a case of the federal government forcing the states — as the federal government often has — to give former slaves a right.
“There is a reason that, in the wake of the Civil War and in Reconstruction, Congress specifically wanted to provide benefits for spouses of freed slaves who fought for the Union,” Clement said, arguing that it was a tradition for the federal government to defend marriage.
Kagan countered that argument by reading from the House Judicial Committee Report on DOMA from 1996: “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”
Clement argued that this only reflected a small group in Congress and truly there was solid reasoning behind the law.
But Kagan didn’t see a precedent or a rationale. Instead she saw a statute that did “something that’s really never been done before.” And to her, that’s “a pretty good red flag” that “Congress’ judgment was infected by dislike, by fear, by animus, and so forth.”
Scalia Argues That Unconstitutional Laws Can Never Be Reviewed
Antonin Scalia is an originalist, which means he thinks white men who only let white men who owned property vote pretty much nailed everything. He used this argument in an attempt to trip up George W. Bush’s former Solicitor General Ted Olson, who was arguing against Proposition 8:
I’m curious, when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial federal question? When — when — when did the law become this?
Olson had a pretty nice retort:
When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?
Scalia has said that he would have voted for the majority in Brown v. Board of Education but he has never said why.
Image: DonkeyHotey via Flickr
Bonus: The Best Argument For Marriage Equality
While it’s fun to make counterintuitive arguments like “fiscal conservatives should be for gay marriage,” Olson made the case for why gay Americans deserve the right of marriage so beautifully and simply that it must be noted:
I thought that it would be important for this court to have Proposition 8 put in context, what it does. It walls off gays and lesbians from marriage, the most important relation in life, according to this court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not OK.