Yesterday the Supreme Court heard oral arguments in cases concerning same-sex marriage. You can find summaries and analyses and readings of entrails all over the place, so I’ll just briefly mention that there are two principal questions before the Court:
- Do same-sex couples have a constitutional right to marry?
- Do states have to recognize same-sex marriages legally performed in other states?
It’s very hard to imagine that the Court will produce a negative answer to Question 2, given that at least one or two conservative members of the Court yesterday seemed to suggest that a split-decision — “No” on Question 1 but “Yes” on Question 2 — could serve as a compromise. Of course, such a ruling would have the practical effect of legalizing same-sex marriage nationwide, except for couples unable to travel for health or financial reasons.
Question 1 is a tougher call, but only because of ideology. The Court already ruled — unanimously — in the wonderfully named Loving v Virginia (1967) that “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”
The only real objection against same-sex marriage is that many people think it as unnatural, immoral, or contrary to the will of God, which are of course exactly the same complaints raised against mixed-race marriages 50 years before and gave rise to Supreme Court decision just quoted. (In fact, the trial judge who originally sentenced the Lovings wrote in his ruling that their marriage not only violated Virginia’s 1924 Racial Integrity Act but was against the will of God.)
In Lawrence v Texas (2003) the Court held that mere popular disapproval was on its own not sufficient grounds to deny a fundamental right, prompting Justice Antonin Scalia to write in dissent, “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution?'” Indeed.
Usually there is some validity to both sides in a dispute. Even opponents of mixed-race marriage could point to the potential problems children of mixed-race parents might encounter. (For example, they risked being elected president.) But opponents of same-sex marriage haven’t been able to think of anything that holds up to serious scrutiny.
Same-sex couple can’t have kids: (1) We don’t make fertility a prerequisite for mixed-sex marriage, and (2) lots of kids are in fact being raised by same-sex couples, and denying their parents the right to marry doesn’t help those kids.
Same-sex marriage will somehow damage or diminish mixed-sex marriage: The assertion never made any sense to start with and, now that same-sex marriage is legal in some many states and countries, it’s pretty obvious that the world hasn’t ended. Same-sex marriage has no affect on traditional marriage at all. The institution is entirely unchanged. All it means is that a new group of people are also able to marry.
Marriage equality is new and goes against tradition: (1) So did the abolition of slavery and every other advance in the human condition. (2) So there’s now a waiting period on human rights?
Homosexuals already enjoy an equal right to marry; they just have to marry someone of the opposite sex: (1) This is a recycled argument against mixed-race marriage that was just as silly half a century ago. (2) I wonder if the people saying this actually believe it (which strongly suggests they haven’t thought the matter through) or merely hope that somebody else will fall for it.
Same-sex marriage redefines marriage: (1) Even if it did, so what? Words change meanings all the time. (2) Think about this a minute: If someone started talking about “same-sex refrigeration” you wouldn’t know what they meant unless they explained that they’d redefined “refrigeration” to mean “marriage,” but you know what “same-sex marriage” is because you already know what “marriage” means. Changing who can get married (for example, raising the marriage age) doesn’t alter the meaning of the word “marriage.”
Update: Jon Stewart had a similar reaction to supposed arguments against same-sex marriage, as for that matter did Justice Ginsburg. See this later post.