Marriage Equality and the US Supreme Court

[Hades]

So, if this sort of discussion has been started already, my apologies for thread-cluttering. 

First, a bit of recap for those who are not living in the US.  Oral arguements are finished now after two days of testimony before the Supreme Court in regards to two marriage-equality related cases.  Tuesday the justices heard arguements related to a challenge to Proposition 8 that was passed back in 2008 that banned same-sex marriage after the California Supreme Court ruled it legal.  Since then, Prop 8 has been ruled unconstitutional by a federal judge, and that ruling was upheld by the Ninth Circuit Court of Appeals.   

Today's focus was on the (laughably and horribly named) Defense of Marriage Act passed in 1996.  It is a federal law that says that marriage is only between one man and one woman in the context of federal benefits, tax code structures and it turns out over 1100 other federal statues.  These statues cover the spectrum of Social Security spouse benefits, tax rates, and so forth.  It also raises the issue of if a couple marries in a state where same-sex marriage is legal, and then move to a state where it is not.  The woman challenging the law is doing so, in part because when her wife died in New York (where same-sex marriage is legal), she was forced to pay an additional $360,000 federal estate tax that she would have been exempt from had she married a man instead.

Now, my personal take on what I've read of the testimony given in both cases.  Indications are good that in the DOMA case, a 5-4 majority will find the law to be unconstitutional.  Unfortunately the prospects for the Prop 8 case seems less fortunate.  It appears that rather than rule that gays and lesbians do have the constitutional right to marry, the court will dismiss the challenge on a procedural technicality.   While this means the lower court rulings stand and same-sex marriage would once again be legal in California, it wouldn't be the sweeping declaration that I and others were hoping for.

So, yeah.   I really had no reason for bringing this up, other than to share with people that might not be aware of what's happening in this country.  I promise you, my international friends, some of us are trying to drag American over to the adult table finally, but it's not easy.

[Vanity Evolved]

Well, good to hear -something- is potentially happening. Despite not being American, I like to think that if they give us an inch, we'll eventually take that mile. ;D And make things a little more equal for everyone. Woo!

[Pumpkin Seeds]

It's coming.  Might be slow in doing so, but legally recognized and sanctioned same-sex marriage will be a reality in the United Sates of America.

[Endorphin]

In the words of Chris Rock: "Gay people got a right to be as miserable as everybody else."

Seriously, anything that promotes equality between people is a wonderful thing.

[kylie]

     Rolling my eyes here at some of the arguments...  ::)   ::)   ::)

Ginsburg:

So a State that has made considerable progress has to go all the way, but at least the Government's position is, if it has done -- the State has done absolutely nothing at all, then it's -- it can do -- do as it will.

     Let's see, the complaint is that they are being asked re: Prop 8, effectively, to tell the states that if they would grant civil unions, then they have to define marriage as including same-sex too.  According to the quote, this means that states that did something for gay rights would be regulated more than states that did nothing.  It's a cute argument, but it ducks the point that providing a marriage in all but name, really is a half-measure.  That's the Prop 8 case.  If it's not okay for states to provide segregated schools or buses, why is it okay for them to provide segregated marriage packages -- one with the title, and one without?

     It does sidestep the fundamental problem -- and it's true that the Executive Branch comes out looking wobbly because it's trying to be dainty and sidestep the debate too!  If we let it all default to saying everything around marriage is first a matter of states' rights, well then basically the states can abuse whoever they vote to abuse, and who is to argue.  Some states are effectively more opposed to, or at least ambivalent about, equal protection than others. 

     You can comb through the politics around say, Georgia, and find plenty of racially motivated denial of funding for specific projects.  At some point, when there is a challenge, which is the very business of the courts to resolve, then:  It's time to fess up and say yeah, this is simply unconstitutional for everyone.  The whole country.  It isn't about states' rights any more than racial segregation is about states' rights.  A state doesn't get the right to refuse people a basic good.  At which point, you either say let's all get with it and deal, or you linger back in the sort of ideology that sustained Jim Crow Laws.

     I also can't stand the "sociologists are divided" argument Scalia attempted.  Here's Scalia:

     If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. Some States do not -- do not permit adoption by same-sex couples for that reason.

That is distorting the existing research, and the whole ongoing nature of research generally so many ways.  Of course, when this is pointed out, someone will just fall back to insisting well there is too little research and all of it should be ignored in lieu of a few more thousand years' history to back it up.  No contradiction there, anyone?  No contempt for academic arguments that take account of existing discrimination, oh surely none at all. 

     Sociology by and large has found no compelling evidence that same-sex marriages are any more problematic than different-sex ones.  That is, apart from issues that might well be the result of well-known discrimination against same-sex couples in general.  Of course, being scientific inquiry, there are plenty of things one could ask and wait for long-term studies on.  There probably always will be, in fact.  Despite different-sex marriage having more following historically, we can still find oodles of unanswered questions about the good of that, too!  So what? 

    The only "benefit" that the plaintiffs for Prop 8 have argued is parents with genetic procreation, and the answers to that have been withering in my opinion.  We don't refuse or dissolve marriages as a matter of law based on their probability of bearing   genetic children.  Far from it.  (Nor I would add, even on the probability of successfully raising any children.)   

And what about, just for example -- one group of related people, and one array of practical outcomes -- those 37,000 kids with same-sex couples parenting them in California -- as below?  (Olson here:)

However, to the extent that my opponent, in the context of California, talks about child-rearing or adoptions or -- or of rights of people to live together and that sort of thing, those arguments can't be made on behalf of California, because California's already made a decision that gay and lesbian individuals are perfectly suitable as parents, they're perfectly suitable to adopt, they're raising 37,000 children in California, and the expert on the other side specifically said and testified that they would be better off when their parents were allowed to get married.

Would they obviously have a comparable alternative if they didn't have those parents?  Does it follow that it's obviously, proven any more beneficial to label their families as second class in name in California ("it's just not marriage")?  For that matter, what about children of same-sex couples in other states where there may not even be civil unions or financial support through various benefits tied directly to the word "marriage"?  How could that be beneficial to them?  Are they rendered expendable, just in order to 'protect' others from the terrifying unknown future impacts of gay marriage?? 

     Oh, but we are supposed to be afraid of some massive, yet unseen social upheaval or failure of child-rearing how many years in the future because something is untested (and more or less, untestable if you keep up with this line of reasoning much further).  Name your test, then, and be specific.  Whenever is it going to end?  Who are you willing -- if not eager -- to sacrifice in the process.     

[Callie Del Noire]

Lets see a show of hands from those who DIDN'T expect Scalia to waffle?  He's an arch conservative toad who will do all he can to stay alive thru the next presidency. He's not going to consider this impartially.

[Oniya]

*sings*

How do you solve a problem like Scalia...

[Callie Del Noire]

*sings*

How do you solve a problem like Scalia...

Hope he strokes out writing the minority opinion after the Prop 8 case goes down in flames?

[Oniya]

*tries to fit that into the original rhyme and rhythm pattern...*