doma

Last Wednesday, starting at 10am Eastern, I was participating in a remote training session at work. This was also about the time that the Supreme Court announced their rulings on the two big same-sex marriage cases they had heard earlier in the year. Needless to say, I wasn’t paying much attention to the training.

The rulings on DOMA and Prop 8 were momentous. The highest court in the land declaring (even if by a shamefully thin margin) that gays are people too, and deserving of equal protection under the law is probably the biggest single step forward I’ve witnessed so far in my life. And I think everyone felt it.

I ventured out that night, in New York City, and the street was blocked off in front of the Stonewall Inn, the place where the gay rights movement began. And the street was full of people, celebrating! There were some news crews around, and every once in awhile you’d hear the sound of a bottle of champagne being uncorked and a spontaneous cheer would rise up from the crowd. The Stonewall itself was packed and the atmosphere was festive. I overheard a bar back tell some people they were running low on vodka!

The war for full equality rages on, and the enemies of progress and equality are going to be digging themselves some deep trenches. But we won a major battle with these rulings–particularly on DOMA. The winds of change are blowing in the right direction. But we can’t get complacent and assume everything will work itself out. It hasn’t been that long since a number of gay men were attacked right in Manhattan–including one who was shot to death. Many states do still not allow same-sex marriage and in some, people can still lose their jobs for being gay. We should absolutely celebrate this win and enjoy the feeling, but we must also stay vigilant.

They feel the change in the air. And they’re scared! The opponents of marriage equality sense that the tide is changing against them and they are growing increasingly desperate in their myopic efforts to thwart an enemy that isn’t really there.

First, let’s look to the antics of the oddly named Family Research Council (it’s not clear to me what–if any–actual research they conduct), which brings forth an argument that is old and tired. Now an old argument isn’t necessarily a bad argument, but in this case it’s so preposterous that I didn’t expect to see it voiced again in any serious way. The group has filed amicus briefs related to DOMA and Prop 8 that Zack Ford on ThinkProgress summarizes thus:

FRC claims that gays and lesbians do not deserve nondiscrimination protections because of their sexual orientation, but adds that even if they did, the Court could still rule against them in these cases. The group explains this by pointing out that gay people can enter opposite-sex couples, and thus laws like DOMA and Prop 8 do not discriminate specifically against gay people, just same-sex couples.

FRC states, in part:

…the right to enter into a marriage that would be recognized under § 3 of DOMA “is not restricted to (self-identified) heterosexual couples,” but extends to all adults without regard to “their sexual orientation.” … a law that restricts marriage (or the benefits thereof) to opposite-sex couples does not, on its face, discriminate between heterosexuals and homosexuals. The classification in the statute is not between men and women, or between heterosexuals and homosexuals, but between opposite-sex (married) couples and same-sex (married) couples.

This is of course just a long-winded way of saying that if gay people want to get married, they are free to marry an opposite-sex partner just like straight people are. Therefore, this is clearly not a matter of discrimination based on gender or sexual orientation. Case closed, thank you very much.

Except, well, that’s stupid. First, they are really letting their homophobia shine through here. These people who are self-appointed protectors of marriage think that it’s less of a threat to the institution for (let’s say) a gay man and a lesbian to get married to each other for the rights and privileges that come with the title than it is for two men or two women to get married to each other. They hate and fear the gays that much! Second, the implication of this argument is that marriage under the law is about nothing more than said rights and privileges. But if that’s the case, why does it have to be between and man a woman? There is no logical reason that it would have to be. Of course, it is about more than that. This is obviously an attempt to spin the situation so that no protected class is being harmed. But no matter how you try to spin it, it is discrimination. There are people who are free to marry the consenting adult whom they love and wish to spend the rest of their life with, and those who are not. It’s pretty damn clear cut.

As Mr. Ford puts it, the same (il)logic could have been used in 1967: “The classification in the statute is not between white people and colored people, but between same-race couples and mixed-race couples, differentiated for the purposes of racial integrity.”

But let’s keep going further down the rabbit hole, shall we? Paul Clement, the attorney hired by the House GOP to defend DOMA, presents this argument:

It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring. Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not. While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning).

I’m no scholar on the origins of the institution of marriage, so I won’t weigh in on that opening claim. His claim that “opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring” is more or less accurate, but irrelevant. No state in the union outlaws marriage between two opposite-sex people on the basis that they are incapable of producing “unplanned and unintended offspring”. Men who are sterile (through nature, disease or vasectomy) get married all the time, as do women who are incapable of conceiving (due to nature, menopause, surgery or disease). If marriage is substantially about whoopsie pregnancies then why give all these people access to it? Also, it’s not so much opposite-sex relationships that cause accidental kids as it is opposite-sex relations (i.e. sex). By this “logic” polygamy should be legal, so that a man can marry his mistress or an already-married woman can also marry the coworker with whom she had a one-night stand at the office party (who himself is married). At best this gives a rationale for encouraging heterosexuals to marry, but not for preventing homosexuals from doing the same. It’s not like marriage is a non-renewable resource; there’s an infinite supply of it!

It’s rather refreshing to see that this is the best they’ve got. Those who would stand in the way of marriage equality are not only tilting at windmills, but they’re also grasping at straws.

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