The Justices' Conference Room

Homosexual Unions, Prop 8, DOMA and Supreme Court—Part 1—updated with new material

By Jeremy Daggett on in DOMA, Homosexual Unions, Marriage, Morality, Supreme Court, Traditional. Permalink.

The Justices' Conference Room

I would highly suggest listening to both oral arguments presented to the Supreme Court Tuesday and Wednesday.

On Prop 8:

On DOMA:

There is much to think about in these cases before the Supreme Court. The arguments made by all the parties involved are well thought out and well argued. I don’t pretend to know how these cases will play out in the end, but I can offer a few thoughts.

 

It was fascinating to hear Charles J. Cooper argue in the first case that the purpose of marriage is children.

Later he says:

“society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party […] will engage in irresponsible procreative conduct outside of that marriage. That’s the marital — that’s the marital norm. Society has […] an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment. So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.”
(Official transcript, 24-27)

Society at large seems to have an interest in preserving the traditional understanding of marriage and eschewing that which would undermine one major objective of marriage; that is to say, children. There are of course, practical benefits as well. Offspring are needed if humanity is to continue. Marriage is ideally suited to the continuance of the human species. Same-sex unions are by nature bereft of procreative power. It is by its very nature sterile. While an older couple who get married may be past the childbearing age, that is merely an accident of time. Heterosexual sex is by nature able to end in conception. An elderly couple getting married are doing nothing to frustrate this primary purpose of sexual relation. Gay sex is, by its very nature, primarily a frustration of that end.

But enough of all that, which is highly debatable and should be discussed over a several pipes and some single malt Scotch with friends and those of good will. In terms of the “equal protection” application, the point is that homosexual couples are not “similarly situated” compared to heterosexual couples. And being “similarly situated” is the key to determining whether there has been an equal protection, or Fourteenth Amendment, violation.  And as to whether these groups are similarly situated, Mr. Copper offers the following answer in response to an objection raised by Justice Ginsburg about the past prohibition of interracial marriage:

Finally, the real question is whether Prop 8 is constitutional.  Mr. Cooper offers this tidbit which is never refuted by his adversaries:

What about the “equal protection” argument vis-à-vis DOMA?  Listen to these exchanges from the DOMA hearing.
Justice Alito begins the first three audio selections with a question, and Mr. Clement offers his rebuttal in the last clip.
Mr. Clement:

Gen. Verrilli:

Ms. Kaplan:

Mr. Clement, in rebuttal:

It seems clear that there is some issue at stake here with equal protection no matter what the court does. If it says DOMA is unconstitutional, then it only means that some homosexuals will get “equal protection” under federal law. As was pointed out in the third clip with Ms. Kaplan, (pages 100-101 of the transcript), a couple could get married in New York, but move to a state which does not recognize their marriage and, presumably, be back at square one until that state recognizes homosexual marriage or the federal government forces the state to do so (which would open another can of worms). You would then have a case of a lawfully married couple in New York enjoying the benefits, and a lawfully married couple who relocated to Oklahoma who do not enjoy the benefits. And what about the military couple that are transferred to Oklahoma? Suddenly, they are out of luck as well? Wouldn’t there be an even greater inequality perpetrated by striking down DOMA?

Furthermore, there would be a rather large uniformity problem for the federal government. It would have to treat the same homosexual couple differently depending on their state of residence. The litigation would mount up. But, I suppose one could argue that there is a moral obligation to go through all that pain. However, isn’t a moral obligation what in part led to DOMA and many state laws defining marriage as between one man and one woman?

Does political might make right? We’ll see.



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