Gay-marriage bans don’t discriminate against gays because they apply to heterosexual people, too.
At least, that’s what Kentucky is arguing — apparently with a (ahem) straight face — to the Supreme Court. This and other Onion-worthy arguments illustrate how desperate gay-marriage opponents have become, and how nakedly their logic now mirrors that used to justify the bigoted anti-miscegenation laws struck down a half-century ago.
In most states, conservatives realize they’ve basically lost the war against gay marriage, both in the court of public opinion and the literal court of law. Same-sex couples are legally allowed to wed in 37 states and the District, and there have been 65 court decisions expanding the freedom to marry since June 2013, when the Supreme Court struck down a key component of the federal Defense of Marriage Act. That’s why many opponents to gay marriage see “religious freedom” laws, such as the one now igniting a firestorm in Indiana, as the last remaining policy tool available to them.
But in a large chunk of the country, gay marriage is not quite a fait accompli. On April 28, the Supreme Court will hear cases from Kentucky, Michigan, Ohio and Tennessee relating to both bans on same-sex marriage and refusals to recognize such marriages performed in other states. The justices’ reaction to these cases is expected to finally, formally determine whether gay marriage must be legal in all 50 states.
Of course, the Supreme Court has already made multiple rulings expanding same-sex marriage access and recognition. States have thus been forced to get more creative about how they justify their remaining marital prohibitions and how they can plausibly claim that their knee-jerk restrictions on matrimony, which the court has repeatedly called a “fundamental right,” don’t violate the equal protection clause of the Constitution.
And so we arrive at Kentucky’s legalistic gymnastics.
In a Supreme Court brief filed last week, a lawyer for the Bluegrass State’s Democratic governor argued that gays are not being discriminated against because they’re still allowed to get married — so long as they disregard whom they’re sexually attracted to.
According to the brief: “Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.”
This logic seemed so disingenuous when I first read it that I had to check whether it was an April Fools’ Day hoax. It’s just too close to that old biting Anatole France quote about how “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
More to the point, Kentucky’s argument closely resembles one used, and rejected, in a landmark Supreme Court case about marriage restrictions: Loving v. Virginia, decided in 1967. Virginia presented similar logic as to why its law banning interracial marriage — like those then on the books in 15 other states, including Kentucky — was not discriminatory. Both blacks and whites were allowed to marry inside their race, after all, and both were equally punished for marrying outside of it. The court didn’t buy it. (In a delightful and almost poetic coincidence, one of the petitioners in the Kentucky same-sex marriage case is surnamed “Love.” History rhymes in multiple ways, it seems.)
Backed into a corner, the states defending same-sex marriage bans today have presented other, equally absurd arguments, too. Kentucky also said it should be able to ban same-sex marriage because the “promotion of birth rates is a legitimate interest” and “supporting the formation of relationships that have the natural ability to procreate furthers the commonwealth’s fundamental interest in ensuring humanity’s continued existence.” Michigan made a related argument in the brief it filed with the Supreme Court.
These and other arguments contained in the four states’ briefs often imply that gay men and lesbians can ignore and switch their sexual orientation at will, despite the scientific community’s consensus to the contrary. In the absence of the ability to legally marry, the states suggest, gay couples will simply shrug, break up and decide to procreatively pair up with a member of the opposite sex instead. This scenario is almost funny, in a sitcom-y sort of way. Or at least it would be, if so many loving couples’ fates didn’t hang in the balance.
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