Expanding the franchise would make the institution stronger,
not weaker.
By Donald Kaul
Confusion reigned
supreme in the nation’s highest court last month as it heard arguments on two
same-sex marriage cases. Confronted with the possibility of endorsing the right
of men to marry men and women, women, the Justices resembled nothing so much as
a group of kittens playing with a ball of barbed wire.
They poked at the
cases and retreated from them. Then they circled around and poked again, never
quite daring to confront the issue directly.
Instead, a group of
private citizens with no real standing in the case brought the appeal.
“I just wonder if the
case was properly granted,” said Justice Anthony Kennedy, seemingly speaking for a majority of the
Court.
So why did the Court
agree to hear the case in the first place? Two words: Antonin Scalia. You can
always count on him to be on the wrong side of an issue.
Court observers say
that he, above all the other Justices, despises the growing trend toward
same-sex marriage rights. Thinking that this would be the Court’s best shot to
knock it down before it gains even more acceptance, he reportedly talked three
fellow conservatives into taking up the case.
The Court spent half
the day arguing about whether they should be considering the case in the first
place, rather than struggling with its central question: Do gay people have a
right to lawful wedded bliss like everyone else?
Not that the rest of
the debate was marked by much more clarity.
At one point, Justice
Elena Kagan asked how marriage equality would damage traditional marriage. The
lawyer for those supporting Proposition 8 responded that the key to marriage is
procreation.
That’s news to many
heterosexual couples that have no intention of having children. Hasn’t he heard
of birth control — you know, condoms, diaphragms, the pill, things like that?
The questioning then
veered off into an unproductive discussion of infertile couples, elderly
couples, Strom Thurmond, and other matters that had nothing to do with
anything.
The bottom line is
this: The opponents of marriage equality have yet to explain satisfactorily how
allowing gay people to marry would harm “the sanctity of marriage.” I think
that expanding the franchise would make the institution stronger, not weaker.
LGBT people aren’t
attacking marriage, they’re improving it. More power to them.
Supreme Court
watchers, by the way, expect the justices to duck the issue and send it back to
the state. That would be too bad. Rights shouldn’t be left to individual states
to grant or not. We have constitutions to protect minorities from majorities,
not to let them be oppressed by them.
The second case
involved the so-called “Defense of Marriage Act,” in which Congress defined
marriage as the union of one man and one woman. It was signed into law by
President Bill Clinton, who now says he regrets doing so.
The law was challenged
by an 83-year-old woman who was forced to pay much higher inheritance taxes
when her wife died than she would have had the federal government recognized
their marriage.
Once again, the
government had second thoughts and decided not to defend its own law in court.
The Republican anti-gay wing of the House took on that task. The Court’s
discussion of the case was just as confused as that of the California case.
Bringing clarity to
the matter was the woman who brought the claim, Edith Windsor. She and her
partner had been together 40 years but only married the last two. And she said
it was the best two.
“For anybody who
doesn’t understand why we want it and why we need it,” Windsor said, “it is magic.”
You’d think that true
defenders of marriage would embrace that sentiment, not oppose it.
OtherWords columnist
Donald Kaul lives in Ann Arbor, Michigan. OtherWords.org