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.
