A federal court heard oral arguments in the lawsuit challenging Virginia’s ban on same-sex marriage last week and Thomas Peyser was there to observe the proceedings. He makes several interesting observations, including the parallels with Loving v Virginia, the case that overturned Virginia’s ban on interracial marriage (and all others as well, of course).
At the Supreme Court in 1967, Virginia defended its law prohibiting whites from marrying outside their race, a law broken by the interracial couple Richard and Mildred Loving. To prove that racism had nothing to do with the ban at issue in Loving v. Virginia, the state proudly pointed out that white and non-white violators were punished just the same.
Similar examples of high-minded sophistry were heard in Norfolk on Tuesday, where the constitutionality of Virginia’s ban on same-sex marriage was debated in federal court…
For the pro-ban team, Loving was an impediment to be brushed aside. The hapless youth who spoke first said the precedent was irrelevant because, “obviously,” the Lovings were not gay. It was different for Boies and Olson. In a majestic peroration, Olson spoke of newly freed slaves’ rush to express their liberty along with their love by getting married. In the days before emancipation, as in the days before Loving, Virginia got things wrong. “It’s wrong now,” he said.
When the plaintiffs exited the courthouse, a protester informed them that there is nothing gay about homosexuals, citing relatively high suicide rates among members of this minority.
But such statistics are just another echo of Loving. In oral argument, Virginia defended anti-miscegenation laws by pointing to relatively high divorce rates among interracial couples. Justice Potter Stewart drily replied, “It could be argued that one reason that marriages of this kind are sometimes unsuccessful is the existence of the kind of laws that are in issue here and the attitudes the laws reflect.” The state likewise disparaged interracial marriages as worse than interfaith ones, provoking an incredulous Chief Justice Warren to ask, “How can you say that? Because … because you believe that?”
He also notes the disparity in the arguments being made inside the courthouse and the ones being made outside it:
Owing to the ground rules of that curious language game called the American justice system, everyone in court agreed to ignore the burning bush in the room: that the fervor for the ban stems from belief that God has pronounced gay sex a sin. But protesters in the street before the hearing were not so inhibited. One man hollered approvingly of God’s “burning Sodom to a crisp.”
This is a lot like what happens in church/state cases. Everyone knows what it’s really about. It’s about oppressing gays because God says they’re icky. But the attorneys can’t say that so they have to engage in sophistry, inventing absurd and illogical rationalizations and using euphemisms (“traditional values” and “pro-family”). Which is why their arguments are just so bad.