Tag Archives: marriage equality

Thoughts Before the Supreme Court Rules

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Getting my thoughts down before the Supreme Court releases its decisions on DOMA and Prop 8 in just over an hour.

I slept badly last night. I fell asleep around 11:30, woke up around 3 a.m., took a four-hour sleeping pill but didn’t actually fall back asleep for another 40 minutes, then woke up again at 5:30. (So much for modern medicine.)

At least we know it’s coming this morning. That’s better than the last few days of watching and waiting.

It’s been a nutty 24 hours in American politics. The Voting Rights Act got eviscerated and Texas almost effectively outlawed abortion last night. I wish the United States were a normal country.

I feel a little selfish that I’m worried about DOMA when I have friends in California who can’t even get married in the first place. But Prop 8 is toast no matter what happens — if not now, then in the next couple of years via the ballot. Which is a long time to wait, but not as long as we’ll have to wait to get rid of DOMA if the Supreme Court does nothing about it this morning. The gerrymandered Republican House means that DOMA isn’t going away anytime in this decade without judicial intervention. A skim-milk marriage is better than no marriage — but we deserve full equality. I will be extremely sad if the Court lets DOMA stand.

The last day has reminded me that we live in a deeply flawed country in an imperfect world. But I still have hope that no matter what happens today, things will eventually turn out right. It will require work. But things will work out.

Still, Justices of the Supreme Court: do the right thing this morning.

Is Being Gay a Choice?

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Today the Delaware Senate is debating marriage equality. According to Twitter, some anti-gay senator or witness brought up the old canard that being gay is a choice.

This is such an old, tired, beaten-to-death topic that it’s not even worth writing about. But I will.

First of all, shouldn’t we gay people be the prime authority as to whether being gay is a choice? We’ve said time and again that it’s not a choice. None of us chose to be gay; we just are gay. But apparently we can’t be trusted to know whether we actually chose it or not. Because we’re, I don’t know… mentally ill? Pathological liars? Brainwashed by imaginary gay central headquarters? Who knows. Even those who are professedly neutral and say things like “science is unclear on whether being gay is a choice” are insulting us. Is being gay a choice? Just freaking ask us. The answer is no.

I think the problem is one of language ambiguity. Being gay means, in most cases, “being exclusively (or almost exclusively) attracted to people of the same sex.” But some people mistakenly think that “being gay” means “having gay sex.”

I wouldn’t be surprised if many of these people are themselves fighting homosexual urges. They tell themselves that as long as they don’t act on their urges, they’re not gay. Therefore, in their universe, “being gay” only means “having gay sex.” Because if “being gay” means “being attracted to people of the same sex,” they’d have to admit that they were gay.

These are probably the same people who think that if society becomes more accepting of same-sex marriage, everyone is going to turn gay and get gay-married and nobody will reproduce anymore and the human population will die out. They think that everyone else has secret gay urges just like they do.

Finally: even if we defined “being gay” as “having gay sex,” and therefore “being gay” was a choice, so what? Religion is a choice. Fine, that’s specially protected by the First Amendment, so also: masturbation is a choice. Heterosexual sodomy is a choice. Extramarital sex is a choice. Who cares?

But it’s not a choice in the first place. I wish that canard would stop quacking already.

The DOMA Oral Arguments

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When Matt and I get married this fall, will we just have a skim-milk marriage? Or will our country’s government treat us equally?

Today’s oral arguments in the DOMA case leave me cautiously optimistic — moreso than yesterday’s Prop 8 arguments. There seems to be a consensus among the experts that DOMA Section 3 is doomed, precisely and only because Justice Kennedy evidently believes that it violates the power of states to define marriage. Only four justices (Ginsburg, Breyer, Sotomayor, Kagan) appear willing to overturn it on grounds of equal protection; Kennedy would provide the crucial fifth vote.

Roberts and Scalia also brought up federalism, but in a curious way. They asked: if the federal government is not allowed to exclude same-sex couples from the federal definition of marriage, does that mean it’s not allowed to include them, either? Wouldn’t that, too, violate states’ rights to define marriage? And if it is okay for the federal government to include them, then why isn’t it okay for the federal government to exclude them?

It was an odd perversion of the principle of federalism. The answer to their question requires asking: what’s the point of federalism in the first place?

Federalism is usually seen not as an end in itself, but as a vehicle to protect individual liberty — usually, negative liberty (“freedom from X”). How does it violate principles of liberty for the federal government to extend federal marriage benefits to same-sex couples? In other words, how does that interfere with anybody’s rights? On the other hand, when the federal government withholds those benefits from same-sex couples, as it does right now, it restricts positive liberty. (More here.) Our government was structured in such a way as to further certain principles, but Scalia and Roberts sounded like they were more interested in sophistic thought games than in the real-life implications of DOMA on these principles.

I thought Roberts, for one, would be more skeptical of DOMA, and I’m kind of disappointed in him. I guess the health care got all of our hopes up.

Then there was Alito, who twisted the principle of equal protection. Alito raised concerns that getting rid of DOMA would itself cause equal protection problems: what if a surviving same-sex spouse in New York doesn’t have to pay estate taxes because New York recognizes same-sex marriage, but a spouse in North Carolina does, because North Carolina doesn’t recognize those marriages? Doesn’t that raise equal protection concerns, he asked?

The answer is: isn’t that North Carolina’s fault, because it doesn’t recognize same-sex marriage, rather than the federal government’s fault, since the federal government just defers to state definitions of marriage? Why wouldn’t the remedy be to shield all surviving same-sex spouses nationwide from the estate tax, rather than make all of them pay it? It seems odd and cruel to say that it’s better not to provide benefits to any married same-sex couples rather than provide benefits to all of them. It basically holds couples who live in same-sex marriage states hostage to all the other states. How is that okay?

Despite Alito’s questions, I still see him as a possible vote to strike down DOMA. Maybe not very likely, but still possible.

Thomas, of course, said nothing. But I wonder if he, too, might strike down DOMA on federalism grounds. I’m not counting on it, but not totally ruling it out either.

So that leaves the four liberals plus Kennedy. States’ rights isn’t the reason I’d prefer for striking down DOMA, but I’d certainly take it.

And now the long three-month wait to see whether Matt and I get to have a whole-milk marriage.