For the last two days, the Supreme Court Justices have listened to arguments for and against California’s controversial Proposition 8 law, a law that bans same-sex marriage in the state, and the federal Defense of Marriage Act (DOMA), a 1996 law that bars the federal government from giving benefits to same-sex couples, regardless of whether or not their home state legally permits them to marry.
This shouldn’t be a difficult decision to make, unfortunately, the idea of marriage equality has been so politicized by the ruling duopoly in this country that we can’t even have an honest conversation about what it means. [I wrote more on this here, about the Biblical ideas of “traditional family values” that are being used to defend discrimination against same-sex couples].
It is almost laughable the conversations that are allowed in the SCOTUS courtroom regarding something that seems so cut-and-dry. On Tuesday, March 26th, we heard arguments from Charles J. Cooper, the lawyer representing the sponsors of Proposition 8, saying that since same-sex couples cannot produce biological offspring, they should not be allowed the right to wed. Luckily, Justice Kagan recognized this idiocy. The conversation went as follows:
Justice Kagan: It seems as though your principal argument is that same-sex and opposite — opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State’s principal interest in marriage is in regulating procreation. Is that basically correct?
MR. COOPER (defending prop 8): I — Your Honor, that’s the essential thrust of our — our position, yes.
Justice Breyer: What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean, there are lots of people who get married who can’t have children.
Justice Kagan (continuing): Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
MR. COOPER: No, Your Honor, it would not be constitutional.
Kagan wasn’t the only Supreme Court Justice to respond with such rationality and clear understanding of what it means to be equal under the law. Justice Sonia Sotomayor questioned Cooper about what contexts outside of marriage would it be ok for the state to discriminate against gays or lesbians:
JUSTICE SONIA SOTOMAYOR: Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision making that the government could make, denying them a job, not granting them benefits of some sort? Any other decision?
CHARLES COOPER: Your Honor, I cannot. I do not have any—anything to offer you—
Of course, not all of our Justices acted so bravely and without discrimination toward the homosexual community. Justice Antonin Scalia offered us no surprises, saying that there is “considerable disagreement” about whether lesbians and gays should be allowed to raise children. And there is no “considerable disagreement.” Studies have shown that the impact on children having been raised by same-sex parents has been, well, no impact. The studies found that children raised by two moms or two dads did not differ in terms of their emotional health, behavior, sexual orientation, or performance in school.
Perhaps the most absurd moment of these hearings was when Justice Anthony Kennedy warned that the Supreme Court must be careful, as they were entering “unchartered waters” and questioned whether or not they should even have taken the case. Absurd because entering these “unchartered waters” is precisely how some of the most historical and landmark cases in this country’s history have been passed. Did we not enter unchartered waters when Roe v. Wade was passed in 1973, providing women seeking an abortion and the brave doctors who provided them protection under the law? Did we not enter into unchartered waters when the Supreme Court ruled on Brown v. Board of Education in 1954, ruling that separate but equal was inherently unequal, and that schools across the nation must be desegregated to provide equal access to a quality education for all? These were unchartered waters and instead of balking in fear, the Supreme Court ruled on the side of equality as protected under our Constitution.
And now that is what needs to happen as SCOTUS considers the legality of laws such as Proposition 8 and DOMA. This should not be left up to the question of state’s rights. When Brown v. Board of Education was passed saying that schools should not be segregated, they did not leave this decision up to each individual state. The sweeping decision ruled that all children in all schools should have the right to an equal education under the federal law. The issue of same-sex marriage is no different. Denying gay men and women the right to commit to their partners with the same rights and abilities as straight couples is unjustifiable. Denying married same-sex couples the right to federal benefits that opposite-sex couples already receive is unjustifiable. I can only hope as we enter these “unchartered waters” that we leave them on the right side of history. DOMA and Proposition 8 must be repealed.