Gay marriage at the supreme court – the smell of desperation 2

I’m sure getting a whiff off of this:

Marriage should be limited to unions of a man and a woman because they alone can “produce unplanned and unintended offspring,” opponents of gay marriage have told the Supreme Court.

So let me get this straight… one of the strongest arguments the opponents of gay marriage think they have at this point is that only heterosexual couples can have “oops” babies? Seriously? And gay people don’t need marriage because they have to plan their babies? I just. I can’t even.

First, I’m sure given the glorious spectrum of human sexuality, this line of argument is not true anyway. For example, John Scalzi pointed out on Twitter that:

Polyamorous bisexuals in same-sex open marriages might wish to dispute this line of “reasoning”

And of course, infertile couples, childfree couples, etc etc etc. But I don’t think we even have to go that far. We should just take a step back and gaze in wonder at the utter, majestic stupidity of that line of argument. We’re boiling the supposedly inviolate and super special institution of state-sanctioned marriage down to trying to get people to legally hitch themselves together because of accidental pregnancy? Because accidental pregnancies out of wedlock place a burden on society but ones within a marriage can’t? (…how’s the weather on your planet?)

Instead, they argue that it is reasonable for the law to steer opposite-sex couples toward marriage, including by giving them extra benefits. “It was rational for Congress to draw the line where it did,” Clement said, “because the institution of marriage arose in large measure in response to the unique social difficulty that opposite-sex couples, but not same-sex couples, posed.”

I just… what? I’m guessing they’re still hammering the oops baby point here, which doesn’t really paint marriage in such a great light. Oh look, marriage is an easy solution to unintended pregnancy – how about rape as well? This is something that still happens in the world and is horrifying. Or maybe I just missed the bit in world history where they told us about how same-sex couples have always had it easy and opposite-sex couples faced unique social difficulties of other sorts.

If all you can come up with once you’ve stripped way the overt homophobia is something that brain-lockingly dumb, maybe it’s time to just quietly pack up the briefcase and go home.

In another part of their brief, they argue for the high court to stand back and to let the “democratic process” resolve the dispute over gay marriage. Both note that voters in several states recently approved same-sex marriage, and opinion polls report that most Americans now favor it.

So basically “please let the dinosaurs draw it out in a lingering, painful state-by-state extinction.”

History called. You’re on the wrong side.

2 thoughts on “Gay marriage at the supreme court – the smell of desperation

  1. Reply Aaron Jan 28,2013 14:03

    Rachael, you pretty much have to have had your brain warped by law school for this stuff to make sense, but bear in mind that the Supreme Court (when it’s functioning properly) doesn’t decide whether a law is a good idea; it decides whether the law is permitted by the Constitution. As Thurgood Marshall famously remarked, “The Constitution does not prohibit legislatures from enacting stupid laws.”

    So when the L.A. Times says the Supreme Court is being asked to limit marriage to opposite-sex couples to address the problem of unintended offspring, it gets the issue completely wrong. The Supreme Court isn’t interested (or shouldn’t be interested, anyway) in whether it’s a good idea to limit marriage to opposite-sex couples. It’s interested in whether there is a rational basis for treating opposite-sex and same-sex couples differently. (So for example, a law saying blacks and whites have to use different bathrooms is discriminatory and has no rational basis; a law saying men and women have to use different bathrooms is discriminatory but has a rational basis.)

    If civil laws on marriage were enacted in part to address the societal problem of unplanned pregnancies, then in a legal sense, it’s rational to focus that legislative response on the group susceptible to that problem. It’s a lawyerly but clever way to defend the constitutionality of the law before the Supreme Court while avoiding the whole homosexuality-is-icky mindset. It’s not intended to be an argument for limiting marriage to opposite-sex couples, only an argument that the Constitution leaves this question (like most questions) to the voters.

    I strongly support revising the legal definition of marriage to include same-sex couples, but I think the voters should decide that issue, not nine people on the Supreme Court. Jumping through all the hoops necessary to change the law in every state may seem like a waste of time to you, but to me it is very important for the Supreme Court to decide cases based on what the Constitution says, not what the justices think is a good idea. Imagine your frustration if the voters in most states passed laws to allow same-sex marriage, but the Supreme Court struck those laws down just because five conservative justices were against the idea, and that might help you understand why I think this is a very important principle.

    • Reply Rachael Jan 28,2013 14:13

      I think the tide really is turning as far as voting goes, but I’d also really rather see the discrimination get nailed by a Federal law (though I have no idea if such a thing is possible, the way marriage works legally). I don’t see it as a waste of time so much as a giant shit sundae for everyone in more conservative states; minorities having to beg majorities for recognition of rights that should be theirs is a horrible, unfair thing. I do with the Supreme Court would strike down DOMA at the least so the Federal government would recognize the marriages that have been allowed in states.

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