Thursday, January 31, 2013

The last, feeble case against marriage equality


I stole my title from Andrew Sullivan because that really seems to describe it, don't you think? How badly are you grasping at straws when you're reduced to arguing that gay people shouldn't be allowed to get married because they're too responsible?

Yeah, straight people can get drunk and knock out a baby from a one-night stand,... so only they deserve marriage? That's your argument?

Here's Jonathan Chait:
But if you’re a lawyer defending a gay-marriage ban in court, you need an actual legal reason for your position. This was the unenviable spot in which Paul Clement found himself recently, defending the House Republican opposition to gay marriage before the Supreme Court. Clement developed a reputation as a right-wing superlawyer for his work in transforming the legal challenge against Obamacare from a no-hope libertarian crusade into very, very nearly the law of the land. It’s a measure of the hopeless illogic of the case against gay marriage rather than Clement’s lack of skill that the best legal case he could come up with was … well, it wasn’t good:
Marriage should be limited to unions of a man and a woman because they alone can "produce unplanned and unintended offspring," opponents of gay marriage have told the Supreme Court.

By contrast, when same-sex couples decide to have children, "substantial advance planning is required," said Paul D. Clement, a lawyer for House Republicans.

So the problem here is that you can’t discriminate against people without good cause. You need some distinction to justify it. The traditional distinction that straight people raise kids doesn’t work, since gay couples can do that too. So Clement fell back on arguing that only straight couples have unplanned children. Gay couples don’t get drunk and wake up pregnant. It is, to say the least, ironic that after years of using alleged gay social irresponsibility as a rationale for discrimination against gays, heterosexual irresponsibility is now a rationale for discrimination against gays.

Note that this isn't a slam-dunk in the Supreme Court, since the court is packed with far-right Republicans. This will almost certainly be another 5-4 decision, and we've seen some terrible decisions out of this court already.

I can't imagine that any of the Democrats on the court will accept arguments as bad as this. And, indeed, there don't seem to be any better arguments which can be made. But I'd be very surprised if at least four of the Republicans on the court didn't support House Republicans on this, no matter what. And it wouldn't surprise me at all if all five went along with it.

However, when your arguments get this bad, it's pretty clear that you've got nothing, don't you think? This really is the last, feeble case against marriage equality. No matter what the Supreme Court decides, I don't expect the Defense of Marriage Act (DOMA) to last too much longer, or California's Prop 8, either.

2 comments:

Jeff said...

From Mark Morford of the San Francisco Chronicle:

http://blog.sfgate.com/morford/2013/01/29/godless-liberal-sickos-win-again/

Jody P.'s Apocalypse now. :)

WCG said...

That's great, Jeff, but I'm not sure the Republicans have lost when it comes to science, the environment, or economics.

Science used to be bipartisan, but now, science is a liberal hoax, don't you know? That's all conservatives have wanted, clear back to the fight by Big Tobacco decades ago, just to muddy the water and delay action.

And they've certainly succeeded in delaying action when it comes to protecting the environment. That, too, used to be bipartisan. Heck, the EPA was established by Richard M. Nixon!

And when it comes to environmental issues, delay is all it takes. Delaying until there's no chance of successful action on global warming, endangered species, or the preservation of our oceans means that we've lost and they've 'won.'

And economics, which has turned into just another "culture war" issue, seems to be another win for the Republican Party.

After all, they wanted to bankrupt America (as a way of forcing a smaller government). And they've won when it comes to income and wealth inequality, too (to say nothing of union membership).

They'll give up on fighting gay rights soon enough, so they can start recruiting gay Republicans. (In theory, they've already given up on opposing racial civil rights. It's just the racists they've been wooing which are holding them back a bit now.)

Hmm,... I think we've switched positions, Jeff. This time, I seem to be more pessimistic than you. :)