Thursday, March 28, 2013

EEK! Teh Gaii!

(Click on image to enlarge and then return, or else.)

David Horsey's column on the gay marriage cases before the Supreme Court of the US is an interesting one.  He uses an analogy that is a bit different than the one usually cited.

During oral arguments, some of the nine justices appeared uncomfortable jumping into the gay marriage debate at all. Much time was spent arguing about whether the petitioners on the pro-Prop. 8 side had legal standing to bring the appeal. Determining that they do not, the court could let the lower court’s ruling stand. They could also simply uphold the 9th Circuit’s decision. Either way, the justices could avoid a broader judgment that homosexuals have a constitutional right to marry in all 50 states.

Also wanting to stop short of that outcome, yet still urging the justices toward a somewhat broader middle ground, Solicitor Gen. Donald Verrilli Jr. offered a position that would open the way to same-sex marriage only in states such as California that already give homosexual couples every legal benefit accorded married persons except the right to marry. Because such states have essentially conceded that there is no societal harm in established domestic partnerships, those states cannot reasonably contend there would be harm in letting same-sex partners marry, Verrilli argued. ...

Oddly, no one pointed out that homosexual couples actually are producing children through sperm donors and surrogate mothers. They are also becoming parents via adoption. Justice Anthony M. Kennedy noted that, in California alone, 40,000 children are being raised by homosexual parents. In the modern world, there is more than one path to parenthood.

Seeking more solid ground for their skeptical view of same-sex marriage, Chief Justice John G. Roberts Jr. and the other court conservatives rallied around the idea that moving too fast on same-sex marriage would be unwise because it is a novel idea that breaks with tradition. Theodore B. Olson, representing the anti-Prop. 8 side, offered the obvious and most pertinent rejoinder: interracial marriage was illegal until the Supreme Court invalidated laws against it in 1967. Such laws enforced a traditional view and were supported by large majorities, not just in the South, but all over the country. Yet the court went against the majority of Americans and against the status quo in that decision.   [Emphasis added]

Most have used the analogy to Roe v Wade, which fundagelicals have long decried as coming out of left field with no juridical precedent.  These cased are  closer to that of inter-racial marriage and the abolition of slavery in which there really was no precedent and in which there was no public outcry.  In that respect, Horsey has nailed it.

He is, however, pessimistic on the outcome.

Me, I'm a bit more hopeful.  One of the justices is in an inter-racial marriage ... one of the (ahem) more conservative ones.

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Blogger John Gardner said...

I think this is going to end up split, personally.

I think they'll avoid prop8 entirely, by eventually finding it was improperly granted, hoping that by the time it gets back to them, CA will have changed its mind...

But on DOMA, I think they'll strike that down. By the questions and answers yesterday, I don't see how you can not see it as anything but discrimination.

Any of this "for the children" stuff is almost always wrong (for any political topics!)

Being heterosexual doesn't mean you're a good parent. It doesn't even mean that your parents are even married, or that even if one parent is hetero, that you even have a second parent. There are millions of single parent households, and that has nothing to do with homosexuality.

So any kind of "we have to preserve the definition of the word marriage so that people have a male and a female parent" argument just doesn't make sense to me...

10:38 AM  
Blogger Diane said...

Well said, John.

You and I agree on a lot of things, but this is a big one for me, so I appreciate it.

12:57 PM  

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