So the nine Supreme Court Justices have heard the cases for and against DOMA and for and against California’s Prop 8. Now they are in their chambers, trying to decide how to decide. From all of the media coverage a person could think that the decisions in these cases matter a lot. I have to take a different view. It is becoming clear that the gay marriage train has already left the station for most Americans. No matter what the Supreme Court Justices rule, society has already passed them by. Even if they decide to uphold DOMA and Prop 8, these laws won’t stand for long.
I in no way want to diminish the importance of marriage equality and I know that there are real people who will suffer real harm if DOMA is allowed to stand and if Prop 8 remains the law in California, even if just for another year (or two or three). For them, the decisions of Chief Justice Roberts and his cohort matter very much. But as for the long-term American project of expanding just who is actually covered by the protections of the Constitution, this particular court cannot throw it into reverse.
Under our system, people who are part of an officially sanctioned marriage accrue many rights and protections not offered to people who are not part of an officially sanctioned marriage. This is a fact. In fact, it is the only relevant fact to consider. Some of the Justices seem to be asking, “wouldn’t it be moving too fast to allow for gay marriage?” This is the wrong question and it is not the one most Americans are asking. Most of us are asking: “Is it unconstitutional to exclude some people from some rights because of who they prefer to kiss?”
The people defending DOMA and Prop. 8 are left spouting platitudes about the sanctity of marriage and the procreative imperative. They are arguing from the religious point of view, which, in this case, runs counter to the ethical and constitutional point of view. This is a nation of laws not a nation of religious teachings, and therefore it should be clear even to Antonin Scalia that gay marriage is protected by the Constitution.
Some opposed to gay marriage are employing the slippery slope argument: “If it is okay for two men to marry, then what is to stop people from bigamy or even bestiality?” As far as bestiality goes, the animal cannot give consent to have sex with the human, so that would be rape, plain and simple. Marriage without consent has never been protected by the Constitution.
Bigamy is a different story. There have been times and places where religious leaders have preached the necessity of plural marriage. There are countries today that allow men (mostly) to have more than one spouse. However, this has never been the case in most of the United States. If, someday, cultural norms change drastically, (possibly in response to some catastrophic event that kills off large numbers of men), then maybe American states will begin to consider allowing plural marriages. This seems highly unlikely to me, but you never know. If that happens and there is growing consensus for the approval of plural marriage, then the Supreme Court can take that case and make that decision when the time comes.
This “slippery slope” argument holds no water. It is the same strategy used by the NRA in their fight against any and all regulations on firearms and ammunition. I find it entirely insulting because it says that we are incapable of making distinctions. It says we are too dumb to see the difference between a shotgun and a machine gun. It implies we can’t see the difference between two women committing to spending their lives together and a man fucking his goat. (Maybe the advocates of the slippery slope argument are really just telling us how they see these sorts of equivalencies…)
In any case, as important as the outcomes of these two cases seem, in the court of public opinion they are already decided and what the nine Supreme Court Justices have to say just doesn't matter.