Heterosexual marriage still unthreatened in all 50 states

Heterosexual marriage still unthreatened in all 50 states June 25, 2014

Today turns out to be kind of newsy — and good-newsy at that:

1.Indiana’s Marriage Ban Struck Down; Marriages Can Begin Immediately

Federal District Judge Richard Young has ruled that Indiana’s ban on same-sex marriage runs afoul of the U.S. Constitution’s due process and equal protection clauses. And because Judge Young didn’t issue a stay, his ruling takes effect immediately. The county clerk in Indianapolis (Marion County) has already announced that they are issuing marriage licenses.

2. And in Utah: “10th Circuit Court upholds same-sex marriage

A federal appeals court on Wednesday ruled that states outlawing same-sex marriage are in violation of the U.S. Constitution.

By upholding a Utah judge’s decision, a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court in the nation to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process.

But the court immediately stayed the implementation of its decision, pending an anticipated appeal to the U.S. Supreme Court.

So let’s update the marriage map. Before today’s rulings, the big map showed that the health of “traditional” opposite-sex marriages was being threatened by legal marriage equality in zero states. Add in today’s news from Indiana and Utah and we get this:

The number of states in which legal equality for same-sex couples threatens the marriages of opposite-sex couples is still zero.

Brian Tashman takes a closer look at the 10th Circuit Court ruling in Utah and finds bad news for the Manhattan Declarers and others who have been desperately trying to argue that civil rights for same-sex couples is somehow a threat to their own “religious liberty.” Here’s the part of the ruling dealing with that claim:

Appellants acknowledge that a state may not “invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution.” But they argue that the social and religious strife argument qualifies as legitimate because a fundamental right is not at issue in this case. Because we have rejected appellants’ contention on this point, their fourth justification necessarily fails.

We also emphasize, as did the district court, that today’s decision relates solely to civil marriage. See Kitchen, 961 F. Supp. 2d at 1214 (“[T]he court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage.”). Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit.

I’ve bolded that last bit because it highlights the silliness of this “religious liberty” argument. No-fault divorce laws did not mandate that Catholic priests had to start sanctifying remarriages. The repeal of Prohibition did not mean that Southern Baptists had to start drinking. Marriage equality does not ask or require anything of Catholics and Southern Baptists either. Their insistence on pretending that somehow it does is, at a very basic level, just weird.

The 10th Circuit Court was also not impressed with the appellants variation of N.T. Wright’s argument — that legal equality for LGBT people constitutes a “redefinition” of marriage, ergo, Nazi Commie Satan.

Appellants’ reliance on the modifier “definitional” does not serve a meaningful function in this context.

The appellants’ argument here rests on their using big words that they don’t seem to understand. The fact that one such big word is “definitional” just makes it funnier.

To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so. One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage. But “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Lawrence, 539 U.S. at 577-78 (quotation omitted); see also Williams v. Illinois, 399 U.S. 235, 239 (1970) (“[N]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack . . . .”); In re Marriage Cases, 183 P.3d 384, 451 (Cal. 2008) (“[E]ven the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions.”)

That last sentence cuts to the hollow core of opposition to marriage equality. The court’s are correcting “an unfairness and inequality” that affects one segment of the population. Righting that wrong does not affect the rest of the population at all. Righting that wrong does not affect the opponents of that correction at all.

Utah’s appeal, like the growing number of other losing attempts to construct a legal argument against marriage equality, failed because the state was unable to make the case that legal same-sex marriage would in any way harm anyone else. We keep seeing such appeals making creative arguments in the hopes of concocting some such harm where none exists, and at some level I just don’t get that.

Opponents of same-sex marriage suffer no harm when LGBT couples are recognized as having the same legal and human rights as the rest of us have. And opponents of same-sex marriage enjoy no benefit from preventing LGBT couples from access to their rights. So if the status quo offers no benefit to you, and correcting “an unfairness and inequality” does you no harm, why oppose it? Why involve yourself in this at all?

As New Zealand MP Maurice Williamson said about marriage equality in his country, “This is fantastic for the people it affects, but for the rest of us, life will go on.”:

All we are doing with this bill is allowing two people who love each other to have that love recognized by way of marriage. That is all we are doing. We are not declaring nuclear war on a foreign state. We are not bringing a virus in that could wipe out our agriculture sector forever. We are allowing two people who love each other to have that recognized, and I can’t see what’s wrong with that for love nor money, sir. I just cannot. I cannot understand why someone would be opposed. … I give a promise to those people who are opposed to this bill, right now. I give you a watertight, guaranteed promise. The sun will still rise tomorrow. Your teenage daughter will still argue back with you as if she knows everything. Your mortgage will not grow. You will not have skin diseases or rashes, or toads in your beard, sir. The world will just carry on.


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