Now that gay marriage has arrived in Idaho, we will get some answers to a few pressing questions.
Will the expansion of civil rights for gay people drive heterosexuals away from marriage? Will it lead to an “increase in the levels of fatherlessness and motherlessness among the vast majority of children”? Does the prospect of two men marrying mean that straight Idaho men will turn to dissolute lives of sex and drugs, leaving their kids untended while they snort and hump their way through life? Will it erode Idaho’s very sovereignty and “democratic legitimacy”?
These are dumb questions, but they represent the primary legal arguments that Idaho made in its losing bid to defend its ban on gay marriage. The courts tossed out the law, and the 9th U.S. Circuit Court of Appeals upheld the tossing recently, ruling that it violates the equal protection clause of the Constitution. Gays and lesbians began marrying this week throughout the nation’s reddest state.
The arguments that attorneys for the state made along the way – challenging the 9th Circuit desperately and tenaciously – are perfect reminders of why this legal question is being resolved so rapidly and in such a widespread manner in favor of gay marriage. Once Leviticus or unvarnished bigotry fall by the wayside – as they must in court – the arguments flounder preposterously.
Here are some of the arguments Idaho’s attorneys made, drawn from the legal filings in the case:
• Gay marriage will make heterosexual parents more likely to abandon their children: “Genderless marriage’s core institutionalized meaning of ‘the union of two persons without regard to gender’ teaches everyone – married and unmarried, gay and straight, men and women, and all the children – that a child knowing and being reared by her mother and father is neither socially preferred nor officially encouraged. The likely and logical consequence of that teaching will be some increase in the levels of fatherlessness and motherlessness among the vast majority of children – those resulting from a man-woman relationship.”
• Gay marriage will make it impossible for us to understand what “mother” and “father” even mean: “The man-woman meaning at the core of marriage, reinforced by the law, has always recognized, valorized, and made normative the uniting and complementary roles of ‘mother’ and ‘father,’ with society perceptively understanding the consequences to be more children who know and are raised by their mother and father and fewer children who experience fatherlessness and motherlessness. In contrast, with its regime of ‘Parent A’ and ‘Parent B,’ the genderless marriage institution denies any space in the law for the uniting and complementary roles of ‘mother’ and ‘father.’ ”
• Gay marriage will encourage Ruby to take her love to town – or to become unproductively obsessed with needlework: “The decidedly more child-centric marriage institution is important to a range of parental decisions beyond ensuring that the child is raised by both her father and her mother; its subtle but powerful teachings will exert an influence on parents to stay away from the abuse of alcohol or drugs; destabilizing extramarital affairs; excessively demanding work schedules; or time consuming hobbies or other interests that take them away from their children.”
• Heterosexual marriage and gay marriage cannot possibly co-exist. “Society cannot simultaneously have as shared, core, constitutive meanings of the marriage institution both ‘the union of a man and a woman’ and ‘the union of any two persons’ – any more than it can have monogamy as a core meaning if it also allows polygamy. Given the role of language and meaning in constituting and sustaining institutions, two ‘coexisting’ social institutions known society-wide as ‘marriage’ amount to a factual impossibility.”
• Idaho’s gay-marriage ban doesn’t even discriminate against gay people because they can get straight-married. “Idaho’s law simply does not bear the marks of sexual orientation discrimination. It distinguishes between male-female unions and all other pairings – not between heterosexual unions and other relationships. Indeed, Idaho law allows a gay man to marry a woman or a lesbian to marry a man.”
• Gay marriage is a threat to democracy itself. “After all, if a popular referendum on so important and sensitive an issue as the definition of marriage can be overturned by the federal judiciary without the State even being afforded the opportunity to exhaust its appellate remedies, why should ordinary citizens even bother to vote on such matters? ….Similarly, if laws passed by State legislatures can be overturned without the State having an opportunity for full appellate review before the law loses its force, why should ordinary citizens bother to vote for State office-holders?”
It shouldn’t be surprising, perhaps, that the legal arguments against gay marriage are so weak. Opponents of gay marriage sometimes use the term “common moral law” to defend their opposition to gay marriage. This means that, based on certain passages in the Bible or gut instinct, Everybody just knows it’s wrong.
But the courts and the times are making it clear: Those beliefs aren’t common, or moral, or – finally – law.
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