United States Supreme Court Hears Arguments On Same-Sex Marriage: The Key Issues

Today and tomorrow, the United States Supreme Court hears arguments in two cases about same-sex marriage. There’s going to be a lot of bluster, but in the end the whole thing boils down to a few key issues. Here are the issues as I see them, and the fundamental logical disconnect that anti-equality forces are hoping nobody notices.

First, they say “it’s intolerant for you not to tolerate my intolerance.” Sound ridiculous? That’s because it is. Using the argument of race, that line of reasoning suggests that the people who were against different water fountains and different seats on the bus were the ones who were really intolerant, because they refused to tolerate the views of those who would deny liberty to everyone. The argument is laughable on its face.

The next argument (that seems to be made in court) is that it’s fine to exclude same-sex couples from marriage because the government has an interest in promoting marriage. Well, that one sounds nice, until you examine it more closely. For a government policy to pass the “rational basis” test, the policy has to have a (you guessed it) rational connection to the purpose it seeks to advance. The problem here is that there’s nothing to indicate that allowing same-sex couples into the institution of marriage compromises or defeats the purpose of promoting marriage as an institution. In other words, the policy and the goal have nothing to do with each other. The people behind these bans know that, so they’ve thrown in arguments like “this is all very new, we don’t know what the impact will be, so we have the right to proceed slowly.” The problem with that argument is what happens when you decode it. What it means is basically that they don’t know whether or not straight people will think marriage is tainted solely because gay people have been allowed in too. That’s called animus, and the Supreme Court held in Romer v Evans that animus against a particular group of people doesn’t count as a rational basis for government policy.

The next line is something to the effect of “millions of people have decided this matter at the ballot box, so the courts have no right to intervene.” As a general rule, I don’t think that leaders of the movement against marriage equality are stupid. I do think, however, that they are more than a bit disingenuous. The United States is not a democracy, at least not in the traditional Athenian mould, where every issue was voted on, and the result was binding. Rather, the United States is a constitutional republic. It uses certain democratic mechanisms, but none of that takes away from the reality that at its heart is an entrenched Constitution that reigns supreme over everything. Anything that conflicts with it simply cannot stand, and the courts strike down all manner of democratically enacted laws where they conflict with the Constitution. Let’s not forget that many of the same people who oppose the courts striking down equal marriage bans were fervently hoping that the very same courts would strike down the Affordable Care Act (Obamacare).

Of course, there are some who have argued that ballot initiatives are different. These aren’t legislators riding high on the hog, entertaining lobbyists and the like. No, these are citizens, and their opinions are sacrosanct. This argument is not appropriate. First of all, from a general point of view, it would render the Bill of Rights meaningless. It can’t be imagined that we would take away rights from all of the minorities protected just because those measures were passed at the ballot box instead of a legislature. Second, from the point of view of established law, the courts agree with this analysis. In Citizens Against Rent Control v City of Berkeley Chief Justice Berger noted that “[i]t is irrelevant that the voters rather than a legislative body enacted [this law] because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.” Translation: if a measure is unconstitutional, it doesn’t matter who passed it; it is unconstitutional all the same.

So what’s left? Accidental procreation. You know things are rough for you when your last argument is that the foundational building block of society exists solely (or at least mainly) because someone might get knocked up by accident, and there needs to be a way to channel those potential disasters into some semblance of stability. Well, if we adopt the maxim that similarly situated people are to be treated alike, post-menopausal women shouldn’t be allowed to marry. Neither should anyone who’s infertile. Contrary to popular opinion, neither is difficult to establish. Some jurisdictions require mandatory blood tests to screen for various bugs before a marriage license is granted. Tack on a fertility test.

The reason we don’t require those tests is that fertility, age, and childbearing capability are not central to marriage. Have a look at the vows that are exchanged at your typical wedding. Nobody promises to produce offspring. They promise to love, honor, and cherish each other through good times and bad.

In the end, nobody is (or at least nobody should be) suggesting that people aren’t entitled to their religious beliefs, and let’s face it: the bulk of the opposition to marriage equality is built on religious belief that “marriage is between a man and a woman.” That’s all well and good. The people who believe that are free to believe it. Believe it or not, when the law changes, Saxby Chambliss isn’t going to be forced to marry a man. He won’t even be forced to accept that marriage is anything other than what he believes it to be as a tenet of his faith. However, the fundamental basis of the US Constitution is that nobody gets to force their religious beliefs on the rest of the country. It’s the reason why the first colonists left Britain and came to America to build new lives for themselves, free to believe and worship as they wished, without the heavy hand of government denying them their beliefs. Part and parcel of that is to understand that the very idea of America is that nobody has the right to impose their religious dogma on anybody else. The sooner marriage equality is made legal, the sooner America will have taken another step closer to its goal of a more perfect Union.

Submitted By: Sameer Ismail
Sameer Ismail has been a political consultant for a number of years. He holds a degree in Political Science from the University of British Columbia, and is currently completing a degree in Law.

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  • ben morgan

    Brilliant article, I’m British- so we’re going through the same thing at the moment. I really think that once we deal with inequality in our own (western) countries- we can truly try to change the horrific abuse in the rest of the world. As a British man, I’m afraid I feel obliged to point out that, in fact, the Puritans left Britain for America en masse, specifically TO BE INTOLERANT. Britain would not allow them to discriminate in the way they wanted- so they mostly emigrated to the new world. Perhaps this is why the US to this day still has such hard-line religious fanaticism, while the UK and Europe are far more moderate. Just an idea

  • Sameer Ismail

    Interesting perspective Ben. I’m not British, though I’ve been living in the UK for the past two years. I think this cuts both ways. The Puritans certainly wanted very much to have things their own way in the Britain, and at the same time they were also treated quite badly while they were in Britain. So they left for the New World. I think that this gave rise to two different philosophies that are at the heart of a lot of the conflicts that we see in the US these days. First, their experience led them to draft a Constitution that rejected an established church, and that guaranteed the freedom for people to believe whatever they wanted. On the other hand, as Puritans, they took, and continue to take, a pretty restrictive view on a lot of issues, especially regarding sex and sexuality. It seems to me that this has led to a constant state of tension between these two competing values. In the end, I think this article makes my position clear — believe in what you want to as a matter of personal faith or morality, but don’t allow it to extend into the sphere of other individuals.

    I should note this as well. Living in the UK, I’ve seen and heard some of the comments made as Parliament debates marriage equality in this country, and to be frank there are plenty of hard-line religious people making a lot of noise over here as well. Further, as progressive as Europe is, neither the European Court of Justice nor the European Court of Human Rights seem to have any desire to go anywhere near this issue, so I think it’s fair to say that a lot of people are grappling with this. I still don’t believe that is a justification for restricting the fundamental rights of others, but it’s been a tough issue pretty much universally.

  • Anthony

    This was so well-written, clear, enlightening and hot. Marry me.

  • Michael

    Perfectly stated.

  • HarryR

    At their core, the people against gay marriage believe being gay is a choice. What has happened since Stonewall, in almost a exponential fashion, is that more and more straight people have realized that homosexuality is an immutable characteristic, like hair & eye color, height, etc. That homosexuals are no more threatening than any other human being. Relatively quickly those that come to those realizations conclude that gays should have the same rights as straight people, including marriage. As a side note, while the first effort was to enact civil unions, the legal community, as well as others, realized there was a whole body of decided law concerning marriage and that same body of law would have to be litigated all over again with civil unions, to what end? That’s why gay marriage quickly overtook civil unions. Listening to today’s SCOTUS arguments one could almost perceive the more open minded justices work through the implications of homosexuality being an immutable characteristic. Scalia, Thomas & probably Alito are too imprisoned in their prejudices to accept that homosexuality is not a choice. Kennedy & Roberts are more open minded. However, because of the politically disastrous results of Roe vs. Wade, SCOTUS is unlikely to mandate gay marriage across the nation. They are much more likely to issue rulings that permit the political process of ever expanding gay marriage to continue. Personally I’d like them to overturn Prop 8 and DOMA, then emphasize the Constitutional provision that ensures that contracts legally agreed to in one State must be honored in all the others. That would mean that even though a particular State outlaws gay marriage it must honor marriage contracts, with full marriage rights, from a State where they were legally entered into, much as a Las Vegas divorce must be recognized throughout the U.S. despite deep resistance in certain States. That was certain States can wrap themselves in their comfort blankets of prejudice yet those resident gays can avail themselves of the legal protections of gay marriage by taking a short trip to a more friendly State. My guess is that legal prohibitions of gay marriage will crumble even in the most hostile States within a generation.

  • Sameer Ismail

    You know, I’ll say two things about that last post there. First, I don’t think that there would be the sort of backlash against a national decision similar to what we saw after Roe v Wade. In fact, a lot of the talk about the Roe backlash is a bit of a myth. If you look at the numbers of people who are dead set against abortion, those numbers have barely moved since the decision. If you look at the number of people in favour, same deal. Very little movement. I think that the bigger issue with Roe is that if you’re against abortion, you believe that a) the fetus is a victim of the practice, and b) that it’s murder. Once you have those beliefs, it’s pretty clear that whatever anybody does, you’re going to fight tooth and nail to stop it from happening.

    The experience with equal marriage in the US, even in states where equality was imposed by the courts, has generally been that opponents get angry, they yell and scream for a bit, then they grumble, but at some point they realize that the world hasn’t ended, that their marriages remain intact, and that things weren’t as bad as they had feared. Once they get to that point, they get over it. Look at Iowa. It’s a pretty conservative state. When the Supreme Court legalized marriage equality there, they tossed some judges out of office, but then they simmered down, and now there’s no talk of going back.

    The other thing I want to focus on is an exchange that Justice Sotomayor had with Prop 8 attorney Charles Cooper. Sotomayor asked Cooper whether, aside from marriage, there could be any grounds for a state to discriminate against its citizens on the basis of their sexual orientation. Cooper was unable to identify any situation where this course of action would be constitutional. Sotomayor fired back at him, asking why it was that LGBT individuals don’t form a legal class, and Cooper had difficulty answering that question as well.

    Why this is important is that so far the courts haven’t treated sexuality the same way as they treat sex, race, religion, etc. If the courts do get to the point where they finally fix that longstanding injustice, then it inevitably follows that there can’t be any justification for any discrimination based on sexual orientation without an incredibly compelling reason. That probably means that marriage bans fall, bans on adoption fall, and so on. I think Justice Sotomayor is to be credited for revealing, in under a minute, what the rest of us have probably known for a while.

  • mark hewlett

    i fucking love this how this was written..if you take all the boldly highlighted quotes, you get right to the point of what this is all about- i posted the following on my face book – i urge others to do the same – Its sweet and simple – my hat is off to Sameer Ismail. he deserves an award for showing us our battle cry – it was capturing our rights as americans, by the founding fathers- we didnt have to change anything. the article reads :

    the issues as I see them, and the fundamental logical disconnect that anti-equality forces are hoping nobody notices.

    fertility, age, and childbearing capability are not central to marriage. Have a look at the vows that are exchanged at your typical wedding. Nobody promises to produce offspring. They promise to love, honor, and cherish each other through good times and bad.

    the very idea of America is that nobody has the right to impose their religious dogma on anybody else. The sooner marriage equality is made legal, the sooner America will have taken another step closer to its goal of a more perfect Union.

    “Genius!” its ruined by the powers against equality- taking our forefathers and putting them on “maury pauvich _your not the (fore fathers) I believe as a community we can show hard work and commitment as role models – as mentors – working twice as hard for the rights for any couples “GAY OR STRAIGHT” we have harder resolve and we will take the words and bend them to their original meanings and not bend to interpret the straight and narrow –as a normal way of being. Being happy, being gay does change humanity..it builds character..it teaches us tolerance and on the fear of making choices that encompass everyone – until a heterosexual can understand what we tolerate as homosexuals – is our perfect unity of excepting Change as normal evolution of unity. if fear is the fight you stand behind, restrain from intelligence as a tool, a greatness you deny, because you cant comprehend. its challenging fear, and understanding falling back behind fear is equal to admitting your brain understands nothing and is lazy, corrupt, retarding your learning potential . God doesn’t hate fag’s or dyke’s- he loves all and takes fear, and gives an obstacle we must correctly maneuver. It the natural way of life. , We have to challenge ourselves to evolve and make choices that benefit equally and evoke words that past civil liabilities show “Change is going to COme” overcoming and educating all that is your negative, your understanding zilch and fooling no one. fooling yourself to believe “different” is bad – deferentially we know nothing if we judge based on not looking at all things and learning we all are the same. only U and I can grow as a we. if you choose to. strong – united – unstoppable together.

    thanks again for making feel American and proud to educate and grow. fear is falling into nothing, fear is falling into obstacles – fear is death. Live. Silence and fear once equaled death. if we reverse and look forward ..we get a picture , all as humans ….would not deny another is roles were reversed. its a dance (back step, look ahead, move forward)