Thirteen states have signed on as “friends-of-the-court” to assert that defining marriage is a state issue rather than a federal issue. If gay marriage comes to pass federally, they promise to break away and become colonies. (kidding.) The irony is that in order to argue for a state’s right to determine the definition of marriage, they have to outwit Judge Walker’s logic that Prop 8 violates the 14th Amendment, Equal Protection clause of the US Constitution. Basically, the age-old arguments are being pushed to their limits within a federal framework (rather than a state framework) because this is ultimately going to the US Supreme Court. I’m not sure how much life these age-old arguments have left, but some new twists have turned up that I haven’t seen before.
Here’s an example:
- Heterosexual couples who are infertile or do not have children reinforce and exist in accord with the traditional marriage norm. This is because by upholding marriage as a social norm, childless couples encourage others to follow that norm, including couples who might otherwise have illegitimate children, and it is in children’s best interest to be in a stable household.
- Parenting by same-sex couples is not worthy of the same protections because same-sex couples can only become biological parents by deliberately choosing to do so; thus, without the same potential for unintended children, the state does not necessarily have the same need to provide such parents with the incentives of marriage.
- If over time society concludes that the children of same-sex couples would do better if some incentive existed for such couples to remain together, then states can address that need.
So, the argument is that the state is interested in producing children, society is interested in children having stable homes (and a married coupledom is such an incentivized home), but same-sex parented homes are seemingly stable enough that marriage for them is unnecessary at this time. I don’t think this makes much sense, unless you deem same-sex parented homes as “lesser than” opposite-sex parented homes.
The way I see it, it’s a question of which comes first: The state’s desire to produce children, or society’s desire to care for children? Here in Washington State where same-sex adoption is legal, there is a campaign to get gay couples to adopt because these couples generally tend to have disposable incomes. This campaign exists because there is an abundance of uncared-for children. It is briefly suggested by the “friends-of the-court” that the welfare policies of the 1960s weakened the incentive to marry (since a single mother would be supported by the government), and there is a subtle suggestion that adoptions by same-sex couples are a band-aid to the problem of child welfare; the “ideal” is supporting marriage as is and limiting government welfare. The “friends-of-the-court” admit that gay couples are great at family planning, but are nonetheless averse to incentivizing their families. Why? Again, I think it’s because of a “lesser than” stance. They repeatedly state that Prop 8 wasn’t about “animus toward gay people,” but obviously what is at work here is an animus toward homosexuality. Because they can’t say “love the sinner, hate the sin” (due to the separation of church and state), they instead take a scenic route through heteroville.
Some of the language of the document sounds like it could have come directly from Mormon leaders. Consider this:
In brief, the State may rationally reserve marriage to one man and one woman because this relationship alone provides for both intimacy and complementarity, while also enabling the married persons in the ideal to beget children who have a natural and legal relationship to each parent, who serve as role models of both sexes for their children.
How can they not realize that this language is homophobic? Are same-sex relationships devoid of intimacy and complementarity? What does it mean to be a “role model” of both sexes? Because I have a penis, I am A, B and C? Personally, most of my role models are women. Does that make me “gender dysphoric?” Good grief.
The next set of arguments has to do with the idea that if marriage isn’t about procreation, then it can’t be about anything, because “commitment” as a definition leads to incest, polygamy, etc, so the government might as well get out of the marriage business altogether. Walker had stated that marriage is about “1) facilitating governance and public order by organizing individuals into cohesive family units; 2) developing a realm of liberty, intimacy, and free decision-making by spouses; 3) creating stable households; 4) legitimating children; 5) assigning individuals to care for one another; and 6) facilitating property ownership” and that a gender distinction is not important. The opponents of Walker argue that if there’s no gender distinction, then the government “must necessarily be served even more by expanding marriage to any group.” Same-sex marriage is deemed the limit here, they say, only because of a “desire for social recognition and validation of same-sex sexual love and relationships,” a desire for validation that could apply to any other group. Being “gay” is not a suspect class and they have judicial precedent to prove it.
Unfortunately, I can see why gay rights groups were frustrated about taking this through the legal system right now, because I can see how the odds are stacked up against gay marriage in the form of endless rhetoric.