Defense of Defense of Marriage

The Supreme Court is hearing arguments around the Defense of Marriage Act (DOMA) and California's anti-gay marriage act Proposition 8. CBS has five possible outcomes:

1. Gay marriage protected nationwide
2. Gay marriage not protected constitutionally
3. No difference between marriage and civil unions (if a state recognizes civil unions they must treat it as marriage)
4. Gay is okay in California (if you read that Californ-I-A, sorry--but that is how I wrote it)
5. Throw the case out

As with the Obamacare, Justice Kennedy is the big question:

I doubt that Justice Anthony Kennedy suffers from insomnia. But if he ever does, this would be the week. At the Justices' conference Friday, Kennedy may have to choose between his two great legal loves--the sovereignty of the states on the one hand and the dignity and rights of gay men and lesbians on the other.

Of course some people are also wondering what Roberts will do too ... after O-Care, anyway.

As of today we have the audio and transcripts from the oral arguments and some tweets from the SCOTUS Blog. It appears that on California's prop-8 the court may well punt. That is: decide not to decide which, apparently, would nullify prop-8 as the circuit court's ruling would stand. That's a very minor victory for Same Sex Marriage (it applies to California but nowhere else).

Today is the DOMA arguments so we may see a more vigorous ruling there.

What Are People Saying?
One theory is that it could be good for the Republicans if the courts allow gay marriage because, hey, it's out of their hands now! It gives a perfect, if limp-wristed, talking point (see what I did there?). That didn't happen for abortion ... but hope springs eternal. What if people bought that? The problem is that if conservative congress people take the squishy let-the-states-decide stance evangelicals ... will walk (so says Huckabee--and, hey, maybe he knows a thing or two).

The excellent WSJ blow-by-blow synopsis shows that the anti-SSM attorney used the "interest of the state in procreation" defense as his primary line of attack. It goes like this: The state--and therefore the people of the state--have an interest in protecting marriage because procreation is in the interest of the state. This, as pointed out by several justices, has a bunch of logical problems (i.e. that lots of people who can't or won't procreate enjoy marriage rights).

On the other hand we can see why they chose this attack: claiming that there's a constitutionally understood definition of marriage may not give people standing (what's the damage if it's just 'changing the definition of the word?') and trying slippery-slope arguments may win votes on the stump but it won't work as well on the high court.

While the DOMA arguments are still unfolding, as with Obamacare, we'll know the answers in June.

What Do I Think?
I think that the problem the anti-SSM folks are having is that they're talking out of both sides of their mouth. There's a concept of "the argument we can all agree on" as seen with: "We should invade Iraq because they are developing Weapons of Mass Destruction." The fact that 'we' can all 'agree' that WMD are bad (m'kay?) brings together coalitions of neo-cons who think we should export democracy tied to a cruise missile, people invested in Halliburton, guys who think that America needed to knock someone over after 9/11 to show that America wasn't to be trifled with, people not-paying-too-much-attention who thought Saddam attacked us on 9/11, guys who hate Arabs, and, well, a whole bunch of people who don't like WMD proliferation.

So you take the argument everyone agrees to and you make that your front-line approach. In other words you don't say "Legalizing gay marriage makes my (Judeo--because I gotta put that in there)/Christian state complicit in sin and will bring the wrath of the heavens down on us all"--even if that's your driving feeling about it. You don't say "Gays are gross and wrong and I beat them up in high school and now I don't want to have to think about gays any more"--and so on.

The problem is that almost no one really thinks that legalizing gay marriage will have any direct effect on procreation. There's no good evidence that it damages children (and, compared to the likely alternatives of single-parent households and orphanages the stats are positively sunny!). Yes, the state needs to replenish it's supply of young workers--else HOW WILL WE PAY FOR OBAMACARE!?--but whether or not the 1 or 2% of gay couples get 'married' will have any impact on that is at very best conspiracy-theory levels of speculation.

In short, it's a disingenuous and therefore ultimately weak argument. There are, after all, plenty of gay couples that get pregnant (lesbians) and produce children (surrogates) in ways that completely mirror what heterosexual couples sometimes do.

The real issue is whether or not the court itself will decide this matter for us or not. That's the issue I think most of the justices were struggling with and, from the transcript, it seems clear that the lawyers knew it too (at one point the anti-SSM lawyer tries to argue that if they overturn Prop-8 in California that defacto permits gay marriage everywhere--he was "raising the stakes.").

On the other hand, to convince Roberts and Scalia you don't need a cracker-jack argument and, to be fair, I'm pretty sure Kagan and Sotomayor had made up their minds too before coming in. The question is Kennedy and he's going to be pondering constitutional and procedural issues as well as moral ones.

For my part, I think that the court will probably take the easy way out on Prop-8 deciding that there's no standing and therefore no SCOTUS ruling--that's just based on my reading of the material and a guess that at 5-4 more-conservative vs. more liberal the urge to "make history" on this will will be lower than the urge to simply throw it back in the political realm.

I'm not as sure on DOMA, though, where I don't know that the same defense exists.

I also want to note that civil rights are generally not good fodder for a state's rights argument: if we feel separate-but-equal water fountains were wrong then why would we leave that up to the states? If it's wrong in New Jersey isn't it also wrong in Georgia? If you, don't feel separate-but-equal was wrong then there's a guy at CPAC you should hook up with (and Rince Priebus and every other forward thinking Republican are be actively wishing you don't exist).

The similarity of SSM to interracial marriage was, indeed, brought up to the court and was kicked around a bit. If homosexuality is ingrained the way skin-color is, that's a 1:1 argument. If it's not it applies less--and no one on the floor made the case that we know for sure one way or the other.

But I think that's not the point. Whether or not the exact same moral argument applies to SSM vs. Interracial Marriage isn't the issue the same way that the-argument-we-all-agree-on isn't always the real one. The point is that Interracial marriage was seen, widely, as wrong for a variety of unpleasant reasons dealing with racism and bigotry. A lot of the very same sorts of arguments (about children facing more difficulties from mixed households, for example) were brought up to try to paper-over this fact. It took until 1967 for this to get sorted out and unless you're really, really young you shouldn't be thinking that's ancient history.

It's shamefully current.

Today the real problems with SSM don't have to do with children or the interests of the states or the institution of marriage as a historical artifact ("It belongs in a museum!")--they have to do with people who are grossed the fuck out by gays and feel that religious judgement hangs over us should we morally descend into Sodom. If that argument doesn't convince you and you're telling yourself this is about gays wanting undue privileged positions in society or about the chipping away of our precious bodily fluids societal virtues you are kidding yourself.