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No Real Arguments Challenge Gay Marriage Equality
As a great civil rights case of our day (Perry et al v. Schwarzenegger) winds its way up the federal court system, a 1970s Wisconsin state statute struck down as unconstitutional stands as a major precedent for marriage equity for gay and lesbian Americans.
There are no serious arguments against marriage equity for gays and lesbians. ‘I believe what I believe’ does not qualify as a serious argument (as most of us learned in elementary school composition) anymore than my-god-mommy-religion-tells-me-so counts as argument.
As with the major civil rights battles of the past 60 years, a coalition of religious and political forces allied with unvarnished hate is armed with a striking lack of intellectual artillery in their views opposing the Constitutional rights denied a class of Americans, in this case the right of gay and lesbian Americans to marry.
Zablocki v. Redhail (No. 76-879)
Wisconsin’s statute enacted in the late 1970s — preventing those falling behind in child-support payments from getting married — was overturned as unconstitutional (Zablocki v. Redhail ((No. 76-879)) in an eight-to-one decision opposed only by the late, statist-reactionary Justice William Rehnquist.
The Court ruled the right to marry is so basic that the economically impoverished or those otherwise refusing child-support obligations do not lose their fundamental right to marry, even if the state of Wisconsin, for example, enacts a law mandating this penalty. A state legislature, or a majority of a voters in a state similarly cannot determine that certain classes of Americans cannot marry just because a temporary majority does not like certain Americans: Gays, blacks, the poor, lesbians, Chinese and so on.
The relevance of the Wisconsin case to Perry is the Court’s establishing, along with other precedents, the Constitutional importance of the right to marry. Having established marriage as a fundamental right, it becomes constitutionally difficult to deny this right to a particular class of Americans, though this difficulty will not likely prevent at least four (Republican) U.S. Supreme Court Justices from voting specifically to deny this right to gay and lesbian Americans.
But a majority of Americans in a given state in favor of bigotry towards gays and lesbians does not place the majority on firm constitutional ground.
As attorney David Boies said recently (Bill Moyers Journal, Feb. 26, 2010):
If you didn’t tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn’t need a constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, ‘This is democracy. But it’s also democracy in which we protect minority rights.’ The whole point of a Constitution is to say there are certain things that a majority cannot do, whether it’s 52 percent or 62 percent or 72 percent or 82 percent of the people.
They can’t say, for example, that blacks and whites can’t go to school together — even though 82 percent of the people may think that. They can’t say that women aren’t allowed to vote, or are not allowed to work in the workplace, or not allowed equal rights or equal wages — even though a majority of people might vote that way in some places.
There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for. And remember, what Ted said is very important. Nobody’s asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court. And what the Supreme Court has said is that even a democratic-elected legislature in Wisconsin cannot decide by majority rule that marriage scofflaws, (p)eople who don’t pay their child support, who abuse their children, abuse their wives, cannot get remarried again.
They said marriage is so fundamental that you can’t take it away, even for people who have abused an initial marriage.
Boies’ colleague in Perry, Ted Olson, amplifies the point:
David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don’t need protection from the courts. The original Constitution didn’t have the Bill of Rights attached to it. And the framers of our Constitution had a big debate and people said, ‘Well, we’re not going to ratify that Constitution unless you attach a Bill of Rights, which protects individual liberty, individual freedom, the right to speak, the right to assemble,’ and those sorts of things.
Over our history, the voters have decided, because they get passionate about certain things, and they may not like certain minorities. Minorities are disfavored. Blacks have been denied the right to vote. California prohibited Chinese, a Chinese person from having any kind of business in California, or getting married. Those kind of votes are not acceptable if they violate fundamental constitutional rights. …
The Congress and the President of the United States 50 years ago made it illegal for someone who is a gay or lesbian to have a job working for the federal government. Many states made it a crime for a homosexual to be in a bar and have a drink. We all remember the ’50s. When civil rights were taken away from people because they were suspected of being a member of an organization that — those sorts of things happened.
And we frequently go to the courts and, Bill, it often happens that the measures that are passed almost unanimously in Congress, because Congress gets carried away, are overturned by the Supreme Court. And you go back to Members of Congress and you say, ‘What happened there?’ And they’ll say, ‘Well, we knew it was unconstitutional. We expected the courts to take care of that. We wanted to get reelected. The courts are the ones that come back and help us.’
The Internet offers us a window in the slow-motion civil rights battle of what will likely be a landmark legal case when it reaches the U.S. Supreme Court sometime in the next one to four years. See Proposition Eight Trial Tracker for legal and political updates.
Perry et al v. Schwarzenegger
From David Boies:
Gay Marriage and the Constitution
Why Ted Olson and I Are Working to Overturn California’s Proposition 8
by David BoiesMonday, July 20, 2009
When I got married in California in 1959 there were almost 20 states where marriage was limited to two people of different sexes and the same race. Eight years later the Supreme Court unanimously declared state bans on interracial marriage unconstitutional.
Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California’s Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution’s guarantee of equal protection and due process to all citizens.
The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail ((No. 76-879)) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, ‘decisions of this Court confirm that the right to marry is of fundamental importance for all individuals.’ In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.
There were legitimate state policies that supported the Wisconsin and Missouri restrictions held unconstitutional. By contrast, there is no legitimate state policy underlying Proposition 8. The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion. It is difficult to the point of impossibility to envision two love-struck heterosexuals contemplating marriage to decide against it because gays and lesbians also have the right to marry; it is equally hard to envision a couple whose marriage is troubled basing the decision of whether to divorce on whether their gay neighbors are married or living in a domestic partnership. And even if depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex, it is impossible to see how that could be thought to be as likely to lead to a stable, loving relationship as a marriage to the person they do love.
Moreover, there is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation. Even if there was, the attempt would be constitutionally defective. But, in fact, the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters. It is also a condition that, like race, has historically been subject to abusive and often violent discrimination. It is precisely where a minority’s basic human rights are abridged that our Constitution’s promise of due process and equal protection is most vital.
Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect — except the increase in human happiness and social stability that comes from permitting people to marry for love. Several states — including Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont — have individually repealed their bans on same-sex marriage as inconsistent with a decent respect for human rights and a rational view of the communal value of marriage for all individuals. But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.
The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. As Justice Anthony Kennedy elegantly wrote rejecting the notion that a history of discrimination might trump constitutional rights, “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
There are those who sincerely believe that homosexuality is inconsistent with their religion – and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.
Gays and lesbians are our brothers and sisters, our teachers and doctors, our friends and neighbors, our parents and children. It is time, indeed past time, that we accord them the basic human right to marry the person they love. It is time, indeed past time, that our Constitution fulfill its promise of equal protection and due process for all citizens by now eliminating the last remnant of centuries of misguided state discrimination against gays and lesbians.
The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.
Mr. Boies is the chairman of Boies, Schiller & Flexner LLP.
- via mal contends
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Michael,
Thank you for this great article! Marriage is a fundamental right under our Consitution and therefore should not be put to the vote of the public. Every citizen is entitled to basic fundamental rights, including our gay brothers and sisters.
TODAY Gay couples in Washington, DC, are being permitted to apply for marriage licenses for the first time. I know there is all kinds of wailing and gnashing of teeth among the usual social conservatives over this … but let me reassure you: The advent of marriage equality for Gay couples will have absolutely ZERO effect on “traditional marriage.” The first state to allow Gay couples to marry, Massachusetts, still has the lowest divorce rate in the country. In all the states where Gay couples are allowed to legally marry or enter into civil unions, Straight couples continue to date, get engaged, marry, and build lives and families together as they always have. To be honest, if you think that YOUR marriage is going to suffer because the Gay couple down the street is allowed to get married also, I think YOU’RE the person who needs counseling.
From a purely Constitutional standpoint, marriage equality for Gay couples has been a long time coming. The only difference between Gay and Straight couples is the sexual orientation of the two people in the relationship. It has nothing to do with religion, since the only thing a church can offer any couple is a ceremony; it is the federal government that bestows the 1,138 legal benefits, according the Government Accounting Office.
It also has nothing to do with raising children, since a couple does not need to be married to have children, nor is the ability or even desire to have children a prerequisite for obtaining a marriage license.
This is about equal treatment as stipulated by the 14th Amendment. You can quote Scripture until the cows come home, but the fact remains that there is simply no Constitutional justification for denying law-abiding, taxpaying Gay couples the exact same legal benefits, protections, and responsibilities that Straight couples have always taken for granted. And it’s CERTAINLY not something that should be part of a popularity contest.
OK, now my wife wants to get a wife, is this still ok? I don’t mind sharing her if she dosn’t mind sharing her new wife.
To Mike:
This is about same sex marriage, not polygamy.
Sure, if she divorces you first.
Lack of artillery? Well now!
Let me bring forth a compelling observation of my homestate of Iowa:
Iowa has the highest percentage of unemployed African Americans in the United States. Number 50 out of 50. How can that be for a state that blows its own horn for being the most free of discrimination in the United States?
The fact is Iowa has a horrible civil right record. In the Quad Cities (SE Iowa) I know of a minority owned business that was not allowed to be in an over 100-member business referral group. The business referral group was (is) composed of over 100 white-owned businesses that refer one another for each others benefit.
But this business was denied three times over the course of three years to join. The business filed an Iowa Civil Rights complaint. After 18 months, the Commission stated that this referral group had every right to discriminate as it is a “private club” and does not fall under the ancient “public accommodations” laws. Is this the mark of a forward thinking civil right state?
Sorry to take you out of your my-god-mommy-religion-tells-me-so intellectual laziness stupor, but this has everything to do with the powerful supporting a group that has more legal clout and spending power (and can bring their big bucks into the state for marriage, which is a good thing for Iowa as tourism is a weak spot) while the weak – those with families and children, and of other color and race – are pushed aside and left, forgotten and homeless, and with no voice.
You majority white people and legislators should all get with it, or just flat out shut up. Take any poll of African Americans anywhere in the 50 states and the great majority will always vote against “Gay marriage” as they are the FIRST to know – and might I add – to FEEL – and EXPERIENCE every day what REAL and CONTINUED discrimination is and that the courts – which do NOT represent the TRULY Oppressed – deny them civil rights – even to be employed (!) – or interact with others in commerce – to this very day! And much, much, worse – actively protect this right to discriminate with “private club” laws! And yes this is 2010, not 1960!
It’s about equal protection under law, a fundemental, U.S. Constitutional right.
There is no serious argument against this.
You do not address the point. Because you can’t.
Your compelling observation does not address denying gay and lesbian Americans the right to marry.
And while I’m at it, Mr Leon, let me express that with gay marriage rights, there is now undeniable PROOF for human rights violations against hetero married couples that come to light:
1. the gay couple will never have to agonize over family planning, or the side effects of drugs.
2. the gay couple will never have to agonize over sterilization
3. the gay couple will never have to agonize over abortion
4. the gay couple will never have to have an untimely birth, and when they want one, there would be money in the house.
5. the gay couple, through adoption, has control of choice in: sex selection, race, appearance, motor, psych and mental skills. They are not obligated to choose a disabled child because they do not birth any.
6. the gay couple will be less likely to have to experience debt, as the burden of educating and raising children, while keeping them safe and healthy.
The agony that homosexuals have to deal with regarding their orientation is no more nor no less than the agonies hetero married couples must face in life. Gays want all the joys, none of the sorrow: heteros always will have BOTH. You call that fair? In fact it is a human rights violation, HAVING NOTHING TO DO W/RELIGION. Oh, and dare I ask if it is fair for the gay married woman to have the magic right to look her same lovely self after getting a child in comparison to the trainwreck heteros wives look like after going through the PAINS of birth, which the oh so privileged and newly endowed gay married woman does not have to endure. Nor the fact that she might have to have her belly opened, uterus exposed, for a child to come out, and pay $12G for that RIGHT? Wow, what a privilege! Which hetero married woman WOULDN’T give her right ovary to have a painless birth, look like a princess immediately afterward, cost nothing, and can even take part in CHOOSING a perfectly cute, non-disabled, right sexed, perfectly TIMED baby? Only the elite of the elite! The gay married predominately white class, who simply must regard that stupid breeder predominately-black class of getting nothing right! C’mon now Mr Leon, be a good civil rights advocate. After all, this nation is based on meritocracy! You can show a little compassion for those who actually have to laboriously WORK at marriage on ALL these tiring issues that gay married couples don’t face.
Howz that for a nuclear tipped uranium enriched shell in your face. Indeed, it is your side that has NO civil rights argument.
First of allm you are wrong about perceived merit.
It’s about equal protection under law, a fundemental, U.S. Constitutional right.
There is no serious argument against this.
You do not address the point. Because you can’t.
Your compelling observation does not address denying gay and lesbian Americans the right to marry.
Not that it matters to the argument, but your points are pretty absurd.
First, a significant percentage of lesbians who have kids give birth to them. So all your ranting about medical issues, sex selection, problem pregnancies, and so on most definitely do apply to gay couples – the female ones at least.
Second, every single point you raise applies equally to any straight couple where the woman has had a hysterectomy, the man has had a vasectomy or testicular cancer, or for any other reason cannot have children together (or are successful with birth control and choose NOT to have children together.) None of these couples are prohibited from marrying.
Third, as do straight couples, a sizeable number of gay couples raise the biological children of one or the other gay person, who were born as a result of a previous heterosexual relationship or previous marriage. Again, straight couples with children of former relationships can marry, and gay people are no different in the challenges and benefits of raising a blended family.
As for your point 6, after having ranted unsuccessfully about all the benefits gay people get from adopting rather than breeding their children (false, by the way, see above), you cannot turn on a dime and state that gay couples don’t have to raise and educate the children we do have. What to you think, we keep them in kennels?
You seem very passionate about making your points. Please go back and add some logic and reality to them and you’ll get to a sensible place – and it won’t be one that prohibits marriage equality.
I throw up my hands at making rational arguments with people who hate gays and lesbians.
It’s like arguing the evidence for biologoical evolution with Sarah Palin.
Thanks for your comment, more patient than I.
Mike, that was one hell of a mess. I’m not even sure I understand exactly what you are arguing for or against in the entire rant. From what I am able to piece together, sounds like you think gays are getting more attention for being disenfranchised then blacks. You also think that marriage and having children are synonymous, which, they are not, btw.. Bois and Olsen have argued that very point quite eloquently during the trial. For you to presume that gay couples don’t face all the issues that straight couples are faced with is quite simply false. It sounds to me as if you don’t personally know any gay couples and are making a broad statement based on ‘I believe what I believe.’ You can be bitter and make all the assertions you want but at the end of the day if you do not have the facts to base them on then you are just another uneducated bigot. All studies have concluded that gays have the least amount of political power of all the minorities. Maybe instead of being bitter towards a group that is trying to scratch and claw it’s way out of the inequities society has placed on them, you should work equally hard within your own minority group to eradicate continuing inequities. From the tone of your rant, I get the impression you aren’t interested in being a part of the solution. You just want to mad at someone and whitey and the gays currently fit that need.
Children are not even close to the issue of equal protection under law, a fundemental, U.S. Constitutional right. You do not have to have children to be married.
There is no serious argument against this.
You do not address the point. Because you can’t.
Denying gay and lesbian Americans the right to marry is not rational.
Sticking up for the rights of others is not being mad at “whitey,” though I do know plenty of stupid white people.
Michael, Calling people who do not think as you do bigots and naming their motive as hate does not make a compelling argument. You do not make a compelling argumnet. I am surprised the periotical here actually published your rant. There are rational arguments against gay marriage, not that you would listen.
But here goes, marraige is about families and producing and raising children. Just because some mariages are not currently involved with this does not mean most are or will be. As such, children need a mom and a dad. Studies are very clear on this. Thousands of studies draw the same conclusion. Don’t bring up the few studies that say the sex of the parents make no difference, any two people will do. These few studies are flawed in their methodology. They weren’t conducted well.
If this “right” were to become universal, it will take time for the effects to seriously desabilize and damage society. Much like the liberal agenda to ease divorce laws with “no fault” divorce of the 60′s and 70′s we are just now seeing the full affect on society.
So maybe someone reading your article will read far enough to see that not all opposition to same sex marriage is from hate.
You clearly have not read the article, or the briefs.
You need to argue that equal protection under the law should be denied gay and lesbian Americans.
Marriage is a fundenmental right, and it is settled law that just because one American is ‘bad’ at marriage, or one couple does not want children (ironic as many gay couples do wish children and lesbian couples often have children in their relationship), or a couple cannot have children, the individual right to marriage is not denied them. See Zablocki v. Redhail ((No. 76-879) for example.
Gay marriage will be protected as an INDIVIDUAL right, maybe in less than four years, maybe in a couple of decades. Your hatred against gays and lesbians will go the way of the hatred against blacks and whites’ marrying. See Loving v. Virginia (1967) when some 60 percent of Americans supported laws banning interracial marriage.
Michael, I did read the article. My point is that some rights are limited, such as the right to falsely yell fire in a theater. The right to marry anyone you love should be limited. It should be good for society. So I would argue that not just any two or three or more people should be able to marry because it will be harmful to society. Same sex marriages are and will be harm ful to society.
I am aware of the Loving v Virginia case. Like Mike above, I do not see that this discrimination equates to what you are arguing. It is not the same.
Despite your assignment of hatred as my motive, it does not make it so. i will continue to engage in a respectful manner to protect society from bad ideas.
It is difficult question as to where to begin. First off marriage laws are equal in that homosexuals can get married just not to someone of the same sex. There is nothing stopping them from marrying someone of the opposite sex. Now I’m sure most are thinking “But they can’t marry the person that they love!” The question is whether this is a civil right or not. From a legal standpoint there are 4 things that a characteristic must live up to to be defined as a civil right. Homosexuality doesn’t live up to 2 of them. (e.g. Financial Detriment and immutability) On average homosexuals make more money then heterosexuals and the idea of homosexuality being genetic goes against basic logic. (For those of you under the impression it’s a proven fact that there is a “gay gene” I am more then willing to refute each of those studies and the great majority of the time I can do it in the researcher’s own words.) Let’s just think about this for a second. If something is genetic and you have a set of identical twins they will both have that trait. We can go through all of the twin studies done over the years: Hamer, Santilla, Bailey & Pillard etc the highest percentage of SSA (Same Sex Attraction) correlation between identical siblings that was ever found was 53%. (And that was in the first study of its kind with the smallest sample and with methodology that has been criticized by both sides of the aisle) The larger the sample gets the smaller the percentage of SSA correlation gets. The most recent studies are under 20%.
With that being said lets call homosexuality what it is: A Behavior. When you go back into American history you will find that the reason we have various benefits for marriage in the first place is because we realized that the family unit is the main factor when trying to create a growing and productive society. They wanted to encourage healthy, culturally beneficial behaviors. Now the question becomes is homosexuality something that our government should encourage? Is it healthy and/or culturally beneficial? 5 studies done in 4 different countries (All within the last decade) show that the average lifespan of a homosexual male is 17-22 years shorter then that of a heterosexual. Also the prevalance of STD’s namely Syphillis in the homosexualy community is so alarming even the San Francisco Chronicle wrote an article a couple months ago talking about it. Gay bowel disease, rectal cancer, the list goes on and on. A recent study found that 43% of gay men have over 500 sexual partners during their lifetime.
Of course the real source for whether homosexuality is healthy are your gay friends. I have plenty of friends and family members who happen to be in the lifestyle or used to be in the lifestyle and their reactions and statements when we have talked about this is the most telling statistic.
Hi Pierce – To which studies do you refer?
Without trying to be funny I’m not sure to which of my references to studies that you are referring. (I don’t like my grammar there either but hopefully you understand what I’m trying to say) Most of my references are to the twin studies and I list some of the researchers in my prior comment. “…Hamer, Santilla, Bailey & Pillard…” If you’re referring to the health studies they are all over the place. Most of them are done by the CDC. There’s also a wealth of information at http://www.narth.com