Gay Rights

America: right-wing legal attack on gay marriage and equality

By Jeff Monahan

The Supreme Court of the United States heard oral arguments in March about the constitutionality of the Defense Of Marriage Act (DOMA) and California’s Proposition 8, both of which condemn gay marriage in different ways.  The arguments have concluded and the ruling could come out any day now, but the debate still rages on.

In my opinion, the LGBT community has already won: such a large portion of young people support gay marriage that it will eventually be recognised in our lifetime.  A foregone conclusion is hardly a consolation for those who currently want to get married now, however, and an adverse ruling would slow down social progress, but a supreme court decision isn’t as simple as saying what is right or wrong.  The decision must be explained in detail so it can guide lawmakers and lawyers in the future.  The nuances of the ruling are where the real meat and potatoes are, and some of the seemingly redundant arguments for or against a policy have significant legal impact and are crucial in deciding a case.

Take abortion rights for example: I thought the “when does a life begin?” discussion got pretty old pretty fast from my point of view.  It was not until I began law school that I understood that only a living person had constitutional rights and how important that concept was to abortion laws.  Similarly, there are arguments people make for and against gay marriage that may seem redundant after a while, but they actually carry a lot of legal weight – it’s not just a question of what is right or wrong.  Here are some of those arguments in italics below and how they fit in from a legal context:

Gay marriage is a slippery slope.  If we let gays get married, people will want to marry their pets.

The paranoia underlying this argument is about opening the door for other immoral relationships like incest and polygamy to become legally recognised.  Why conservatives frame the question so radically is beyond me, but the argument unfortunately does have some legal merit.  We have to allow the legislature to have some latitude to create laws based on moral grounds, otherwise murder would not be illegal.  The Supreme Court has recognised this in the past so the issue may affect the upcoming decision.

While making this argument, opponents of gay marriage conveniently ignore how interracial marriages were once viewed as immoral.  Now their voices sound an awful lot like echoes of our country’s racist past.

Gay marriage harms the family.  If kids grow up without either a father or a mother they will be screwed up.

Just as the Supreme Court has recognised the government’s interest in creating laws that reflect morals, the court has recognised the government’s interest in protecting children and promoting family life. Children are the future of America so Congress is right to be concerned with how they develop.

The counter argument is that there are many people who grow up in single-parent households and integrate flawlessly into society.  Opponents to gay marriage cite research in their favor, and advocates of gay marriage do the same.  This is one issue that there is no right answer for yet, and it will ultimately come down to what the judges personally believe.

Being gay is a choice.  They should just choose to be straight and have a traditional marriage.

Long ago the Supreme Court ruled that laws classifying based on race are invalid because one’s race is an “immutable characteristic” that begins at birth.  A law based on an action, however, is easy to justify, like assault or fraud.  Setting all morals aside, if being gay is also a choice then a law classifying based on sexual orientation becomes a little easier to rationalize.  If not a choice, which of course it is not, then it is not fair for Congress to single out a class of people whose “immutable characteristic” renders them different by no virtue of their own.  The radical church groups preaching on street corners get annoying really fast, but believe it or not their arguments do have some legal impact.  It is important for us to understand this so we can advocate on behalf of gay marriage in a more educated and effective way than our opponents.

Gay marriage is plainly different from traditional marriage because gay couples can’t have children.

The Supreme Court has previously recognised an individual’s fundamental right to procreate.  This right is not listed anywhere in our constitution but is a right so central to our existence that the court acknowledges it anyway.  If a law infringes on this right it is more likely to be unconstitutional, but if the right does not even exist, which it doesn’t between gay couples, there is no question of whether the law interferes with a constitutional right.

If this argument is to be accepted, however, all marriages involving infertile heterosexual couples would be illegal as well.  As soon as a couple reached that special age, this rationale would suggest that their marriage be annulled.

Supreme Court decisions are far more complex than what is right or wrong.  Most people join in the arguments spelled out above, but few understand how they fit in as pieces in the legal puzzle.  In the future, ask yourself what types of people are protected or harmed by a certain policy, and ponder if the government can justify acting in accordance with it.  By digging a little deeper into the issues to learn how they fit together we become more educated and thus more powerful to make social progress.

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