You may have noticed some fellow travelers on Facebook suddenly appearing as muted red equal signs on a bold red background. The Facebook equal sign is your perennial show of solidarity, wherein supporters will draw virtual inspiration from their concomitance whilst they click away the hours sharing pictures of baked goods on Pinterest. But what could possibly be so important that hundreds of your friends would replace their strategically attractive profile pictures, even for just a few days?<\/p>\n
Gay marriage at the Supreme Court, that\u2019s what. Get it now? Equal sign = equal rights for all. It\u2019s a red version of the Human Rights Campaign<\/a>\u2018s blue-and-yellow equal sign you might see on cars. Enough Facebookians are involved for Time\u2019s<\/em> Newsfeed<\/a> to have taken notice.<\/p>\n There are actually two high-profile marriage cases before the Court this week. Hollingsworth v. Perry<\/em>\u00a0is the federal court challenge to California\u2019s Proposition 8, a voter-approved amendment to the state constitution that declares<\/a> \u201conly marriage between a man and a woman is valid or recognized in California.\u201d United States v. Windsor<\/em> is a challenge to the federal Defense of Marriage Act (DOMA), which defines marriage the same way for purposes of federal law.<\/p>\n Passions are high for all\u2014besides the Facebook uprising, both sides are\u00a0demonstrating outside<\/a>\u00a0the Court with some powerful messages.\u00a0For convenience, we can oversimplify and call the two sides \u201cMarriage Equality\u201d and \u201cTraditional Marriage.\u201d The Marriage Equality side argues that this is the next battle in the great Civil Rights struggle. Not too long ago, it was still illegal in some states for whites and blacks to marry. These so-called anti-miscegenation laws were struck down\u2014in 1967!\u2014in the celebrated (and delightfully named) case Loving v. Virginia<\/a>.\u00a0<\/em><\/p>\n Readers might recall the Missouri\u00a0pastor<\/a> who cobbled together a speech from old segregationists, replacing the term \u201cracial integration\u201d with \u201cgay rights.\u201d Until the big reveal, it sounded like a pretty standard argument for traditional marriage. This is disturbing stuff that we need to take seriously. If the analogy holds\u2014if gay people are in the same position now as blacks were in the 50s\u2014then it follows that we (the Traditional Marriage side) are the segregationists. If indeed \u201cgay is the new black<\/a>,\u201d then count me out.<\/p>\n But that can\u2019t be right. The disanalogy is explored<\/a> at great length<\/a> elsewhere (including before the Court<\/a>), and it is important that we not let this rhetoric confuse us. One of the reasons we find those old segregationist pastors so odious is precisely because they abused this kind of argument. We must not be maneuvered into discarding legitimate ways of reasoning about political issues simply because wicked men have used them in the past. Josef Stalin murdered millions of people while espousing the same rhetoric as some of today\u2019s leftists. Conservatives commit the same fallacy when they use the response, \u201cChairman Mao, QED.\u201d<\/p>\n Pastor Snider\u2019s bait-and-switch makes a powerful statement, and I don\u2019t think it was a cheap trick at all. We need to be very careful that our thinking here is not tainted with animus. We do not have to condone homosexual behavior to have normal relationships with gay people\u2014unless, of course, all of your friends are sinless beings whom you interview before starting a relationship. The question of marriage might drive a wedge in our politics, but any purely personal discord should not be coming from Christians.<\/p>\n To those who argue for traditional marriage out of hate for their gay neighbors\u2014we pray for you, but we cannot welcome you.<\/p>\n Alright, you say, denunciations are all well and good. But even if our position is in good faith and not hateful, are we not still depriving an entire class of people of a basic civil right? Why deny the blessings of marriage to committed gay partners? As it turns out, the Constitution requires the government to provide an answer to that question. The Court is not empowered to judge the policy wisdom of the law, but \u201cEqual Protection of the Laws\u201d means that any classification requires an explanation. In the context of race, this justification has to be pretty darn convincing (for various reasons too complicated to explain here). But in almost every other context, the classification must only have a \u201crational basis\u201d related to a \u201clegitimate\u201d state purpose.<\/p>\n The law did not fare well below. The trial court\u2019s opinion<\/a>\u00a0was a drumbeat of finding after finding, beating the law in to the ground until finally concluding, on page 135, that the law \u201cfails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.\u201d The Ninth Circuit, in an opinion<\/a> by an icon<\/a>\u00a0for judicial liberalism, affirmed: \u201cProposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California.\u201d<\/p>\n I think we can agree that if marriage has no public purpose, then it is hard to explain why we have it at all, let alone why it is important to limit it to one man, one woman. Prop 8\u2019s defenders (Governors\u00a0Schwarzenegger\u00a0and Brown both refused to defend the law in court) assert two main governmental interests. First, they make the forceful case that marriage has always been defined and explained as rooted in promoting responsible procreation. In their words, \u201cBy providing special recognition, encouragement, and support to committed opposite-sex relationships, the traditional institution of marriage preserved by Proposition 8 seeks to channel potentially procreative conduct into stable, enduring relationships[.]\u201d The second rational basis flows from the first: They argue that California has an interest in \u201cproceeding with caution before fundamentally\u00a0redefining\u00a0a bedrock social institution.\u201d<\/p>\n These two interests are vigorously contested by Marriage Equality proponents, who immediately demand evidence that responsible procreation is advanced by traditional marriage. After all, gay couples already have children<\/a> and lots of straight couples are terrible parents. The conversation then quickly becomes two ships passing in the night, each side misappropriating social science studies and ignoring the other side\u2019s premises. But the\u00a0legal\u00a0<\/em>question is not whether California has the better sociological argument\u2014it is whether it is\u00a0rational\u00a0<\/em>for it to think traditional marriage is, to quote Blackstone<\/a>, \u201cthe manner in which that natural impulse must be confined and regulated.\u201d<\/p>\n The DOMA case involves the same issues, but because it is a federal statute brings in additional considerations. The section at issue declares that, for purposes of federal laws, the term \u201cmarriage\u201d is defined in the traditional way. Thus, federal tax breaks, benefits programs, and so on, will not apply to same-sex married couples in those states that allow such unions. Normally there is no question that a legislature has the power to define the terms it uses. The argument here is that the definition results in unequal treatment of validly married couples based only on sexual orientation. While the two cases are similar, the DOMA case brings the question of benefits schemes in to starker relief\u2014especially since California has a civil union law that bestows identical benefits on same-sex couples.<\/p>\n The Marriage Equality side thinks that the Traditional Marriage side is \u201con the wrong side of history.\u201d We must reject arguments from historicism, for history makes a weak and fickle god\u2014and people change cultures. But the Chief Justice has been concerned with his Court\u2019s reputation, and Justice Kennedy can have libertarian tendencies. On the other hand, it is difficult to imagine even the Court\u2019s liberals ruling that the government in either case has\u00a0no\u00a0<\/em>rational basis here. Predictions, therefore, are of little value. In my view, the California law easily passed rational basis. Indeed, I believe traditional marriage passes the harsher strict scrutiny standard, as the least restrictive means of achieving society\u2019s goal of channeling potentially procreative relationships\u2014and reaping the panoply of benefits that accompanies that general ordering with the least possible state intrusion.<\/p>\n Is that a legitimate state interest? Some think we need fewer people, not more children; some think ordering society isn\u2019t the state\u2019s role. I think that\u2019s wrong. Who should decide? In the current battle at the Supreme Court, the fight is not about what kind of marriage laws\u00a0are best\u2014it is about leaving those decisions with political communities<\/em>. A \u201closs\u201d for the plaintiffs in these cases will not change any law in any state\u2014and if they are right, soon almost everyone will be on their side. But if Traditional Marriage loses\u2014if the marriage laws of all of human history are ruled unconstitutional in 2013\u2014the law changes everywhere and no one gets a say.<\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":" You may have noticed some fellow travelers on Facebook suddenly appearing as muted red equal signs on a bold red background. The Facebook equal sign is your perennial show of solidarity, wherein supporters will draw virtual inspiration from their concomitance whilst they click away the hours sharing pictures of baked goods on Pinterest. But what […]<\/p>\n","protected":false},"author":1347,"featured_media":32432,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1484,15,1],"tags":[],"class_list":["post-32418","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-ofthemoment","category-politics","category-uncategorized"],"yoast_head":"\n