From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in the Huffington Post on March 28th:
Whatever the outcome of this week’s historic Supreme Court hearings on same-sex marriage, one thing has become crystal clear: there is no longer, if there ever was, a rational argument to ban it. That very question — when did it become unacceptable to ban gay marriage — was at the center of a tense exchange between Justice Scalia and Ted Olson, the lawyer challenging Prop 8. “When did it become unconstitutional to exclude homosexual couples from marriage?” Scalia wanted to know, clearly believing the answer was “never.”
While the focus of Scalia’s question was the constitutional grounds for banning gay marriage, his challenge applies more broadly as well: When did it became socially unacceptable to oppose gay marriage? Are there any grounds for holding that position beyond simple prejudice? Is it possible to oppose gay marriage and not be anti-gay?
The oral arguments this week gave these questions their final hearing, as opponents took their most public opportunity ever to put together a cogent argument for banning gay marriage that didn’t rest on prejudice against gay people.
They failed miserably. Charles Cooper, the lawyer defending Prop 8, famously acknowledged to the trial court that he could not explain how gay marriage harmed the “procreation purpose” of marriage. So it was predictable that the Justices gave him another shot this week. When asked if had found any reason for excluding gay couples from marriage, he threw everything he could at the bench, and nothing stuck.
One could reasonably believe that “redefining marriage to a genderless institution could well lead over time to harms,” he said first. When pressed on how gay marriage could cause those harms, he said it could sever the institution’s “abiding connection to its historic traditional procreative purposes.” When asked the rationale for letting women too old to procreate marry, given that such a marriage would seem to have already severed that connection, Cooper claimed that blessing a straight, but not gay, infertile union was still rational because it made the man in such a union less likely to “engage in irresponsible procreative conduct outside of that marriage” — still not explaining how letting gays wed would affect that likelihood.
When this fell on deaf ears, Cooper seemed to forget the premise of the question he’d been asked — how could he justify blessing a straight infertile union but not a gay one? — and returned to his talking point that society has an interest in “seeing any heterosexual couple” that plans to live together get married first “so that, should that union produce any offspring,” — something an infertile union, by definition, can’t do — “it would be more likely that that child or children will be raised by the mother and father who brought them into the world.”
He also tried the “marital norm” argument which claims that, even if a straight marriage is infertile, it’s acceptable because it furthers the social norm of monogamous heterosexual commitment, which is critical to child welfare. The “marital norm” argument has been the last effort by marriage equality opponents to argue their position without conceding anti-gay animus. But anti-gay animus is built into the argument. The logic is that a “marital norm” creates an expectation of commitment, helping to keep sexually active straight pairs faithful to each other in case a kid pops out; but calling a gay union a “marriage” could weaken that norm, since too few people regard gay relationships as models worth following. It’s the same argument that eventually lost in the battle over “Don’t Ask Don’t Tell,” in which gay service was said to threaten unit morale: Letting gays into the sandbox will drive others away, so even if we grown-ups aren’t anti-gay (a big “if”), we simply can’t force equality onto the whole playground without risking chaos. By this reasoning, prejudice becomes a justification for perpetuating itself. The grown-ups never step in to do what’s right.
On Wednesday the lawyer defending the Defense of Marriage Act (DOMA) tried his hand at offering a rationale for excluding gay couples from marriage that didn’t rest on animus. Paul Clement said the government was trying to promote “uniformity” and “democratic self-governance” by declining to recognize gay marriages in states that legalized them.
The absurdity of these rationales led Justice Kagan to wonder aloud if “we really think that Congress was doing this for uniformity reasons” or “do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?” The clincher was when she quoted from the House Report explaining the 1996 law, which said: “Congress decided to ‘reflect an[d] honor [a] collective moral judgment’ and to express ‘moral disapproval of homosexuality.'”
Oops! The law’s backers actually wrote their animus into the Congressional record, and try as he might to distance his defense from theirs, Clement failed to come up with any rationale beyond moral disapproval.
While Olson initially struggled to answer Scalia’s question about when it became unconstitutional to exclude gay couples from marriage, he later nailed it: “We’ve learned to understand more about sexual orientation and what it means to individuals,” he said, adding a quote from Justice Ginsberg that he said resonated with him: “A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.” Edith Windsor, the 83-year-old DOMA plaintiff, also nailed it in yesterday’s news conference outside the Court: “As we increasingly came out, people saw that we didn’t have horns… It just grew to where we were human beings like everybody else.”
And this is really the key point. As Roberta Kaplan, arguing for the DOMA plaintiff, said, “With respect to the understanding of gay people and their relationships, there has been a sea change” since 1996. Once a critical mass of Americans came to understand that being gay is a natural part of some people’s existence, whether by birth or for reasons of enduring nurture, and that it harms no one, there were no more legitimate reasons to treat gay relationships unequally, just varieties of blind faith in the wrongness of homosexuality — and rationalizations to veil such animus behind pronouncements of harm.
With the “gay marriage harms marriage” argument wholly discredited, it’s become impossible to take seriously any claim that you can oppose gay marriage without being anti-gay. Sure, you’re entitled to be emotionally invested in a narrower, older understanding of what marriage means. But once you bother to weigh the arguments — once you recognize the essential humanity of gay people, and assess the harms wrought by treating them differently and the lack of harm caused by letting them wed — there’s only one right position to take, whatever your feelings may tell you.
With no reasons left to oppose gay equality besides the personal belief that gay unions have lesser value, it’s tempting to call all marriage equality opponents bigots, and assume bad faith. Those less comfortable with gay equality are clearly sensitive to the charge. Chief Justice Roberts asked — incredulously — if the 84 senators who voted for DOMA could really have been “motivated by animus?” Opponents of marriage equality naturally resent being called bigots for holding a position that, until recently, the vast majority of humans pretty much took for granted — that marriage was an opposite-sex union. And they have a point.
Fortunately the courts, which have been the best venue to reveal the bias at the root of anti-equality sentiment, may also offer the best route to confronting it. Wisely, neither Kaplan nor Solicitor General Donald Verrilli took Roberts’ bait. “I’m not saying it was animus or bigotry,” said Kaplan of the motive behind the law. But “times can blind” and DOMA was based on “an incorrect understanding that gay couples were fundamentally different than straight couples.”
Verrilli echoed the point. “It may well not have been animus or hostility,” he said. He then offered a 2001 Kennedy quote suggesting that prejudice can arise not just from hostility but from “the simple want of careful reflection or an instinctive response to a class of people or a group of people who we perceive as alien or other.”
Certainly it was a matter of legal strategy — and simple propriety — to avoid offending the justices. But this more generous understanding of gay marriage opponents may be as practical as it is kind. Those wishing to continue progress toward the equal dignity of gay people beyond the achievement of legal parity should keep in mind that prejudice is not the same as malice, and should encourage the kind of “careful reflection” that remains, for too many, all too rare.