The Supreme Court Sends More Signals That It’s Ready To Strike Down Same-Sex Marriage Bans

By refusing to stay the legalization of same-sex marriage in Alabama, the Supreme Court has sent the strongest signal yet that it is ready to legalize same-sex marriage nationwide.

Same Sex Marriage Supreme Court

As I noted yesterday, the Supreme Court refused to impose a stay on a Federal District Court Order declaring Alabama’s laws against same-sex marriage unconstitutional, a move that came over the strong objections of Justices Thomas and Scalia and which many observers on both sides of the marriage debate are taking as a sign of how the Court is likely to rule in the four same-sex marriage cases it accepted for appeal last year:

The Supreme Court’s decision on Monday not to delay same-sex marriage in Alabama offered the strongest signal yet that gay rights advocates are likely to prevail in coming months in their decades-long quest to establish a nationwide constitutional right to same-sex marriage.

The court’s decision came with a blistering dissent from JusticeClarence Thomas, who criticized his fellow justices for looking “the other way” as another federal court pushes aside state laws, rather than taking the customary course of leaving the laws in place until the court addresses larger constitutional issues.

Since October, when the Supreme Court refused to hear appeals from rulings allowing same-sex marriages in five states, it has denied requests to stay orders requiring other states to let gay and lesbian couples marry. Largely as a consequence of the court’s inaction, the number of states with same-sex marriage expanded to 37 from 19, along with the District of Columbia, in just four months.

Last month, the court agreed to hear four same-sex marriage cases. They will be argued in April and probably decided in late June.

In dissenting from the unsigned order in the Alabama case on Monday, Justice Thomas, joined by Justice Antonin Scalia, suggested that the court was poised to establish a constitutional right to same-sex marriage, a question the court ducked in a pair of decisions in 2013.

Justice Thomas accused the majority of an “indecorous” and “cavalier” attitude in refusing to maintain the status quo in Alabama at least until the Supreme Court issues its decision in the four pending cases.

“The court looks the other way as yet another federal district judge casts aside state laws without making any effort to preserve the status quo pending the court’s resolution of a constitutional question it left open in United States v. Windsor,” he wrote, referring to the 2013 decision striking down part of the federal Defense of Marriage Act.

“This acquiescence,” Justice Thomas added in a telling passage, “may well be seen as a signal of the court’s intended resolution of that question.”

Buzzfeed’s Chris Geidner is among those contending that Thomas is likely correct in his observation that the Court’s action in the Alabama case is likely a strong indication of how it is likely to rule on the cases pending before it:

WASHINGTON — The United States Supreme Court will end discrimination against same-sex couples this June — and even justices who oppose the coming decision appear to know it’s going to happen.

On Monday morning, Justice Clarence Thomas made explicit what had been growing apparent to observers for months: The court — at least a majority of the justices — has made up its mind on the issue of whether the U.S. Constitution bars states from treating same-sex couples differently than opposite-sex couples in marriage laws.

In denying the Alabama attorney general’s request to keep a U.S. district court order that strikes down Alabama’s ban on same-sex couples’ marriages on hold while the state appeals, the Supreme Court — even as it considers marriage cases out of four other states — made it clear that the justices will not stop same-sex couples from marrying in the meantime when a judge strikes down a ban.

(…)

Given Thomas’ dissent today, the only real question left outstanding is where Chief Justice John Roberts and Justice Samuel Alito will end up on the ultimate question. Although both dissented in the Windsor DOMA decision, neither has joined Thomas and Scalia in saying publicly that they would have granted any of the recent stay requests.

Ian Millhiser at Think Progress agrees with this assessment, as does Orin Kerr at The Volokh Conspiracyand even National Review’s Ed Whelan, who has been critical of the decisions striking down state-law bans on same-sex marriage, agrees that the signs are all there:

There’s little doubt that the Supreme Court’s order today irresponsibly declining to stay the federal-district court order against Alabama’s marriage laws signals that at least five justices have already made up their mind to concoct a constitutional right to marry a person of the same sex. Who needs briefing or oral argument anyway, when you’re just making it up? And why give careful thought before redefining the central social institution of American society in a way that denies the fundamental connection between marriage and responsible procreation and childrearing? Gee, what could go wrong?

This isn’t the first sign we’ve gotten from the Supreme Court on this issue, of course. When the Justices struck down the Defense of Marriage Act in 2012 and allowed the ruling against California’s Proposition 8 to stand, they were simply following a line of decisions that goes back to Roemer v. Evans, a 1996 case in which the Supreme Court struck down a state referendum that had purported to bar municipalities from providing protected status based on sexual orientation in their civil rights laws. Seven years later, in Lawrence v. Texas, the Court struck down laws criminalizing sodomy, reversing its own 1986 decision in Bowers v. Hardwick. Along with the Windsor case, all of these opinions were written by Justice Anthony Kennedy, who clearly has been moving in an increasingly libertarian direction on the issue of gay rights over the past two decades. More recently, of course, the Court has seen its ruling in Windsor set in motion a tidal wave of litigation that has resulted in nearly complete unanimity among the Federal District Court and Circuit Court of Appeals Judges who have heard the issue on the issue of the constitutionality of bans against same-sex marriage. The only exceptions to that have come from a Federal District Court Judges in Louisiana and Puerto Rico, and tbe Sixth Circuit Court of Appeals.

The Justices, meanwhile, have reacted to this phenomenon in a way that seems to clearly indicate that there is likely a majority on the Court ready to rule that state law bans on same-sex marriage are unconstitutional. In October, of course, the Court surprised many by declining to accept the appeals of same-sex marriage cases from the Fourth, Seventh, and Tenth Circuits, each of which had declared marriage bans unconstitutional in a series of cases affecting Utah, Oklahoma, Virginia, Wisconsin, and Indiana. This made same-sex marriage the law of the land in those five states as well as six other states within their jurisdiction. Days later, the Ninth Circuit also struck down marriage bans in Utah and Idaho, which essentially also made same-sex marriage inevitable in Arizona, Alaska, and Montana. Not surprisingly, the Justices denied requests for stays from the states impact by these Circuit Court rulings, eventually expanding the number of states in which same-sex marriage was legal to thirty-five. In late December, the Justices took another surprising step when they declined to authorize a stay of the Federal District Court Order legalizing same-sex marriage in Florida, the first time they had declined to impose a stay on a District Court ruling on the issue when there was not already a pre-existing Court of Appeals decision from the same Circuit. The Justice’s actions in the Alabama case is thus just the latest development from the Court on this issue, but certainly seems to be provocative evidence of just what might be going on in the Justices minds.

As always, it is perilous to try to read Supreme Court tea leaves, and this is especially true given the fact that the Justices have not even heard oral argument on the Sixth Circuit same-sex marriage cases yet and that a decision is still some four months away. Nonetheless, we are now at the point where a decision upholding state law bans on same-sex marriage would most certainly be inconsistent with the manner in which the Court has approached gay rights issues for the past two decades and how it has approached the same-sex marriage issue for the past two years. As I said in October after the Court declined to hear the appeals from three separate Circuit Courts of Appeal, it would be fairly shocking if the Court were to eventually rule that state laws against same-sex marriage are constitutional after having taken actions that thousands of couples will rely upon. Now that they’ve taken further action that has extended legal same-sex marriage to 37 states, it is even harder to believe that they would do this. Anything is possible, of course, but if I were a betting man right now, I’d be putting my money on the Supreme Court striking down same-sex marriage bans nationwide in June in a decision that will be either 5-4, with Justice Kennedy providing the deciding vote, or 6-3 if Chief Justice Roberts ends up joining Kennedy in the majority as many observers anticipate. In either case, Justice Thomas appears to be right. The writing is on the wall, and it’s only a matter of time.

FILED UNDER: Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Another Mike says:

    Let the war commence.

  2. stonetools says:

    Poor Justice Thomas. He is really, really sad that the Supreme Court will issue a pro-civil rights decision.I wonder what kind of life that he had to lead to become so anti-minority rights. Does he not realise that Roy Moore’s predecessors would happily voted to prevent HIM from marrying his current wife?
    Somewhere Thurgood Marshall is shaking his head.

  3. DC Loser says:

    Don’t celebrate yet. It’s like Charlie Brown kicking the football. Lucy can always pull the ball away at the last minute.

  4. C. Clavin says:

    Poor Clarence…the little people are getting rights and he can’t stop it.

    OT…I see Bill O’Really is defending Brian Williams…because if journalists can’t lie…Fox is out of business.

  5. Argon says:

    Thomas and Scalia tipped their hands more than the rest of the court. Those two are clearly upset that the decision is unlikely to go their way.

    The issue is: Why dick around with peoples’ lives more than you have to? Assuming the decision really is going to go the way Thomas thinks, why stay the decision? Gary marriage is already going on in many other states.

  6. C. Clavin says:

    Clarence and Tony are pretty sure freedom is only for their patrons….and no doubt they will eventually make up some originalist justification for that.
    History will see these two as a blight on the SCOTUS.
    Unfortunately we are stuck with them.
    Vote Democratic and help prevent the bigots from winning.

  7. OzarkHillbilly says:

    As I said in October after the Court declined to heard the appears from three separate Circuit Courts of Appeal, it would be fairly shocking if the Court were eventually rule that state laws against same-sex marriage are constitutional after having taken actions that thousands of couples will rely upon.

    😉 sorry Doug, I just couldn’t help myself.

  8. Argon says:

    Another good thing is watching Rod Dreher implode.

  9. @OzarkHillbilly:

    That’s what I get for writing on an empty stomach….. Fixed

  10. James Pearce says:

    And why give careful thought before redefining the central social institution of American society in a way that denies the fundamental connection between marriage and responsible procreation and childrearing?

    This dude should meet my Mom.

  11. HarvardLaw92 says:

    This battle is essentially over, and few but the most hyperpartisan far-righters / bible thumpers are even attempting to pretend that there is legitimate uncertainty about how the court will eventually rule on this issue. In my opinion anyway, that outcome couldn’t be more clear at this point if it were telegraphed in 50 foot neon letters with naked pole dancers thrown in for effect. It’s over.

    The concern at this point isn’t SSM. It’s these ludicrous “you can get out of doing anything you don’t want to do or discriminate against whomever you please by just invoking your religious beliefs” propositions that are springing up here, there and everywhere. We’d do well to consider the marriage question shelved, and move on to combating what conservatives are clearly setting up as the next battlefield in this social war.

  12. @HarvardLaw92:

    The concern at this point isn’t SSM. It’s these ludicrous “you can get out of doing anything you don’t want to do or discriminate against whomever you please by just invoking your religious beliefs” propositions that are springing up here, there and everywhere.

    This will be a point of contention in the courts for many years to come I think.

  13. Franklin says:

    Despite the fact that I personally think Thomas is usually wrong, I’m actually slightly sympathetic to the idea that all the rulings could have been stayed until the SC issues the final ruling on all of them. Wouldn’t it have been sort of an awesome day if SSM suddenly became legal in the final 20 or 30 states, rather than just the last few that are hanging on?

    Regardless, it should be a fun day in Michigan. We actually do have something like 300 legal same-sex marriages here now (from one day where it was legal before being stayed).

  14. DrDaveT says:

    redefining the central social institution of American society in a way that denies the fundamental connection between marriage and responsible procreation and childrearing

    I have no words for someone who could write this. If he’s sincere, he’s utterly contemptible. If he’s NOT sincere, he’s even more contemptible.

    Here’s to the vision of a horde of irate adoptees camped outside Whelan’s house letting Whelan’s kids know exactly what they think of THEIR parents’ fitness to breed.

  15. Gustopher says:

    @DrDaveT: I’m pretty sure he means and/or, not a mathematical and, so adoptees are covered in the child rearing cause.

    “Mothers and children first” does not apply only to those who got knocked up at 12, for instance.

    Now, stop making me defend the horrible people.

  16. Jim R says:

    It’s going to be enjoyable to watch the anti-equality crowd’s helpless rage as this comes to fruition.

  17. Another Mike says:

    @DrDaveT:
    So, you have no argument, you merely have contempt.

  18. DrDaveT says:

    @Gustopher:

    so adoptees are covered in the child rearing cause

    That can’t be it; adoption is not different for same-sex couples versus hetero couples. It has to be a claim that the mere fact of being a same-sex couple disqualifies for child-rearing. We’ll let any abusive drunk wife-beater spawn as much as he likes, but gotta keep the homos away from children.

    That’s what’s contemptible.

  19. DrDaveT says:

    @Another Mike:

    So, you have no argument

    Surely the burden of proof here is on the one who is claiming that certain people are, as a class, unfit to parent. Given the extremely low bar America has set for parental qualifications, it’s an extraordinary claim. Some evidence to support it is impossiblelacking.

  20. Another Mike says:

    @DrDaveT:

    Given the extremely low bar America has set for parental qualifications, it’s an extraordinary claim.

    No one has set a bar. It is just a matter of biology. Male-female sexual unions produce children in their normal course. Same-sex unions are incapable of producing children in their normal course.

    Hopefully, a majority of the Supreme Court will have the wisdom to understand that this is an issue that cannot be resolved through judicial fiat by elite lawyers. It has to be resolved in the states by legislatures representing the will of the electorate.

  21. DrDaveT says:

    @Another Mike:

    Male-female sexual unions produce children in their normal course.

    Mine didn’t. What, exactly, are you claiming about the legitimacy of my marriage? Be specific.

    Or, to unpack it for you if you are still too dense to see where you’re going: there are many marriages in the US that are incapable of producing children in the ‘natural’ way. Some of those couples adopt; some use high-tech interventions, possibly involving egg or sperm donors; some choose to live childless. Unless you are willing to take a stand that permitting those kinds of marriage is A Bad Thing, the sort that America should take active steps to prevent, you’re just another mealy-mouthed hypocritical bigot trying to hide his bigotry behind a veil of half-understood biology. If you’re willing to let mixed-sex couples do it, it ain’t about the biology of procreation.

  22. stonetools says:

    @Another Mike:

    Male-female sexual unions produce children in their normal course

    Dammit, so I did something wrong when I married for love a woman who was beyond her child bearing years. I should go home and tell her that someone on the Internet thinks our marriage is a mistake.

    Or maybe that someone is just looking to justify their bigotry with an impossibly narrow definition of what marriage should be about. It’s intersting that anti SSM advocates have to eventually argue that “women are for breeding” and there is no good reason for marrying women who can’t reproduce. I guess that also goes for men with a low sperm count as well, come to think of it.

  23. C. Clavin says:

    Meanwhile, in Kansas, Brownback has now made it legal to discriminate.
    So while the rest of the country moves forward towards freedom…Kansas under the full monty of the Republicanist agenda…moves backward away from freedom.
    http://www.latimes.com/nation/la-na-kansas-governor-gay-protection-20150210-story.html
    Score one for the bigots.

  24. Another Mike says:

    @DrDaveT:

    You are reading something into that statement that is not there. If I throw a heavy object up into the air it comes back down in its normal course. But not every time, says snarkmeister. Got you, says snarkmeister!

  25. Ken says:

    @Another Mike: Male-female sexual unions produce children in their normal course. Same-sex unions are incapable of producing children in their normal course.

    Argument by Implication.Very passive-aggressive. Gets folks all riled up over the stupid, nonsensical argument that anyone with an IQ above room temperature can clearly see you are implying, and then, when people destroy that obliviously stupid argument, you get to claim “Oh nonono, I never said that!”

    @Another Mike:You are reading something into that statement that is not there.

    It’s like predicting the sun will come up in the East

  26. CET says:

    @Another Mike:
    I’m probably going to regret this, but I’ll bite.

    Granted that homosexuality is a real thing that real people are, it seems reasonable to both (a) encourage those people to form stable couples and (b) to provide those couples with the same government benefits that hetero couples are provided with.* Further, given that some same sex couples will raise children, is seems reasonable to assume that it will be beneficial to have those children reared by a couple who have committed to being a family, rather than just a pair of adults who can go their separate ways at the drop of a hat.

    Essentially, whether you personally like the idea of same sex couples or not, it makes sense to bring them into the current paradigm for hetero couples and the nuclear family that is arguably a foundation of western culture, rather than encouraging a counter culture of short-term relationships and transient parenting.**

    *I could honestly care less what this is called. If it were up to me, the government would call them all ‘civil unions,’ and couples and their faith communities could call it whatever they please.

    **No. I am emphatically not saying that child rearing (by any couple) outside of marriage is bad/impossible/whatever. Just that marriage will probably tend to improve the quality of child-rearing on average, by virtue of encouraging stable two parent homes, while denying couples the possibility of marriage will likely have the opposite effect. Think of it as a culturally conservative (small ‘c’) case for same sex marriage.

  27. Another Mike says:

    @CET:

    I’m probably going to regret this, but I’ll bite.

    Why fear regretting it? That sounds like a perfectly reasonable starting place for a conversation.

    I believe the idea of civil union was rejected as not enough. Civil union was viewed as an inferior status to marriage. Possibly no baker would refuse to bake a civil union cake. Civil union is merely a secular creation, basically a contract, and there is not much offense to be found in it.

    If marriage had never existed, government might have regulated all long-term, romantic personal relationships as civil union contracts. Those which produced children would have been governed by law. I doubt though that anything would have been gained over what we have today.

  28. DrDaveT says:

    @Another Mike:

    Civil union is merely a secular creation, basically a contract, and there is not much offense to be found in it.

    [boggles]

    Um, so is marriage, in the eyes of the law. You knew that, right? That being legally married has nothing at all to do with being married in the eyes of your faith group or other cultural entity? You can be legally married (but not in the eyes of the ___ church), or you can be married in the eyes of the ____ church (but not for legal purposes), for any value you choose to fill in the blanks with.

    The law has no power to tell the First Church of the Gooey Death what counts as the sacrament of marriage before God — nor should it. TFCotGD has no power to tell the government what counts as the binding legal contract of marriage — nor should it.

    (And before you go there, read some history about which came first, the legal contract or the sacrament…)

  29. Mikey says:

    @DrDaveT: Yeah, my wife is a “lapsed” Catholic, who married me, an atheist former protestant and divorced man. We’ve been married 22 years, unless you ask the Catholic Church, in which case we have been fornicating for 22 years and our son is a bastard.

    The best course for America to take would be to emulate the Germans and completely separate civil and religious marriage. Priests can’t perform state-recognized weddings. A couple can get “married” in any German church, but if they don’t also show up at the Standesamt and get their marriage done by the officer of the state, they aren’t married. And they don’t have to get married in church at all if they don’t wish to.

  30. Another Mike says:

    @Mikey:

    The best course for America to take would be to emulate the Germans and completely separate civil and religious marriage.

    I don’t know if this would do much. A priest is not going to marry you unless you already have a marriage license from the county clerk. In other words the couple has already been qualified and registered by the state. Of course, the priest will only marry you provided that you meet the additional requirements of his particular faith.

    In Germany prior to about 1815 there was no Standesamt. Church records were all that existed to document marriages, births and deaths. Civil registration was an outgrowth of the French Revolution. It began almost immediately in parts of Germany under French control, but did not become universal until after the French-Prussian War. Church properties were expropriated by the state, and the churches no longer had the means to support themselves. That’s why the church in Germany even today is supported by the state through the church tax.

  31. Mikey says:

    @Another Mike: You’re largely correct–this wouldn’t change very much. But what it WOULD change would be very important to this debate. We would entirely divorce (no pun intended) civil marriage from the religious sacrament, and thereby eliminate any conflict between civil marriage and religious beliefs in the context of what the state recognizes. Civil marriage, with the attendant legal and tax implications, would continue as before, while the religious sacrament could be celebrated without concerns over state interference.

    And really, the fact it wouldn’t change much should really show how little actual risk there is to the institution of marriage if we allow same-sex couples to wed. (There’s really no risk, IMO–I mean, the abuses the institution has suffered and survived through opposite-sex marriages are so many and so deep that allowing same-sex marriage could hardly make things any worse.)

  32. DrDaveT says:

    @Another Mike:

    You are reading something into that statement that is not there.

    OK, let me go back and read it more charitably. When you said

    Male-female sexual unions produce children in their normal course. Same-sex unions are incapable of producing children in their normal course.

    perhaps you merely meant that same-sex couples aren’t going to accidentally spawn, and so don’t need to raise children if they don’t want to. There’s no danger of unwanted kids in same-sex families, because getting kids requires active effort (and probably cash) from a same-sex couple.

    …so why isn’t that an argument in favor of same-sex unions? From that viewpoint, they should be on average more loving and financially secure than the current norm.

  33. CET says:

    @Another Mike:
    …If marriage had never existed, government might have regulated all long-term, romantic personal relationships as civil union contracts.

    Ok . . . I’m confused by your position then. My read of that post is that you’re ok with civil unions, but not marriage for same sex couples. If so, why? That seems like an oddly narrow place to draw the line, since the difference is basically just semantics.

  34. Another Mike says:

    @DrDaveT:

    …so why isn’t that an argument in favor of same-sex unions?

    That is an argument for same-sex unions, which I do not oppose. However, there are those who have been raised by loving same-sex couples, and they say that it is not enough. A child needs a father and a mother.

    In a same-sex relationship a child will by design have only one biological parent. In the typical case the child will not even know who the other biological parent is.

    It is probably correct to say that children are just an afterthought in a same-sex relationship. It is the adults and their sexual behavior that matter. Sexual behavior that is by its very nature infertile.

    I view same-sex couples as roommates, and what goes on of a sexual nature or doesn’t, is of no concern to the rest of us.

  35. Another Mike says:

    @CET:

    That seems like an oddly narrow place to draw the line, since the difference is basically just semantics.

    It is hardly just semantics. A marriage between a man and a woman is in its normal course fertile. Unless there is a defect or the couple deliberately blocks the fertility, there will be children. The male-female union is the correct biological arrangement to produce children. The children and their parents will constitute a biological family. An other arrangement for producing and raising children is a compromise. Sometimes the compromise is unavoidable and the best situation that can be gotten. Examples might be adoption by infertile couples and the loss of a spouse with subsequent remarriage of the surviving spouse. In some cases the marriage is so toxic that divorce is the only option. In some cases the marriage was flawed from the start and there never existed the conditions for a healthy and sustainable marital relationship. This is the basis for annulment in the Church.

    A same-sex relationship is always infertile by its very nature. In order for the relationship to produce children, a third person of the opposite sex must become involved in the relationship in some form. Even then the children produced will be biologically related to only one person in the relationship. In respect to children the relationship is all wrong by it very nature.

    In some cases a loving same-sex couple can raise children and have very good outcomes. Also, there is no way I know of to stop a woman from having a child, if she wants a child. It makes sense to allow a state-sanctioned same-sex union apart from marriage.

    I do not see same-sex unions being used to assault religion in the same manner as same-sex marriage is being used. If same-sex marriage is decreed by the supreme court as the law of the land, it will be the lever to attempt to overturn religion. There is more at stake here than many realize.

  36. Mikey says:

    @Another Mike:

    In order for the relationship to produce children, a third person of the opposite sex must become involved in the relationship in some form. Even then the children produced will be biologically related to only one person in the relationship. In respect to children the relationship is all wrong by it very nature.

    I have a co-worker whose wife is infertile. He supplied sperm and his wife’s sister supplied eggs for in-vitro fertilization. They now have twins. Are they “all wrong?” Does the fact the supplier of the eggs is the children’s aunt “improve” things, in your view? I mean, even in a same-sex relationship, a relative of one of the partners could do the same, thereby ensuring the child is biologically related to both partners.

    If same-sex marriage is decreed by the supreme court as the law of the land, it will be the lever to attempt to overturn religion.

    Oh, please. Religion is under no threat here. In fact, the BEST thing that could happen for religion in this scenario would be to separate civil marriage from religious marriage, and then neither has to worry about the other’s toes being trod upon.

  37. Mikey says:

    @Another Mike: Also, unless you’re asserting the sole purpose of marriage is the production of children, your entire argument here is irrelevant.

  38. Paul L. says:

    Progressive Genius at Balloon Juice.

    We already have laws against bigamy, polygamy, bestiality, etc. Allowing the ghey marriage doesn’t undo those laws.

    But Striking Down Same-Sex Marriage Bans can undo those laws.

    Free Eddie Ray Routh!
    He is just a mentally unstable PTSD suffering Social Justice Warrior who killed lying serial killer war criminals who were part of the 1%.

  39. DrDaveT says:

    @Another Mike:

    I view same-sex couples as roommates

    Yes, but this is a defect in you, not in those marriages.

    I’m at work, and don’t want to respond hastily, so I’ll save the longer reply for later.

  40. DrDaveT says:

    @Another Mike:

    It is hardly just semantics.

    You just said that you are content for same-sex couples to have all of the legal rights, privileges, and obligations of legally married couples, so long as we don’t call it ‘marriage’. Caring only about the label and not the substance is kind of the quintessence of “just semantics”, as that phrase is typically used. (Is that really true, by the way? You’d be fine with same-sex marriage as long as we all agree to call it “civil union” or “legal shacking” or “two-party contract of mutual affiliation” or some such, and avoid the m-word?)

    Of course, “separate but equal” has never had much staying power as a basis for social justice… Would you still be content if we ALL agree to give up the m-word for all legal purposes?

  41. Another Mike says:

    @Mikey:

    Also, unless you’re asserting the sole purpose of marriage is the production of children, your entire argument here is irrelevant.

    From the point of view of society promoting posterity was the overwhelming reason for granting special status to marriage. It was not just the begetting of children, but their support, protection and upbringing that was needed. Their mother also needed support and protection. The family needed to be headed by a father.

    Marriage also had the added benefit of corralling the male sex drive into a monogamous relationship.

  42. Another Mike says:

    @DrDaveT:

    Caring only about the label and not the substance is kind of the quintessence of “just semantics”

    I think I have described the substantive differences between marriage and same-sex union well enough.

  43. Mikey says:

    @Another Mike:

    From the point of view of society

    Which changes. Constantly.

    What if “the point of view of society” has changed so that “promoting posterity” is no longer the primary motivation for granting special status to marriage?

    Or, perhaps the point of view of society has changed so that most people believe the promotion of posterity should extend to couples and families it hasn’t in the past?

    “It’s always been done this way” is a poor rationale in many instances, and this is one.

  44. Another Mike says:

    @Mikey:

    What if “the point of view of society” has changed so that “promoting posterity” is no longer the primary motivation for granting special status to marriage?

    This is one way to look at it and has some validity. This is why the supreme court will kick this back to the states, if they are wise.

    Tradition carries a lot of weight and is not so easily dismissed by a glib statement. There was a reason that marriage was held up as something sacred. The family was the basic unit of society and still remains so.

  45. DrDaveT says:

    @Another Mike:

    From the point of view of society promoting posterity was the overwhelming reason for granting special status to marriage.

    Bzzt. I’m sorry, that’s incorrect — but thanks for playing.

    People who actually study history know that the overwhelming reason for granting special status to marriage was the preservation and disposition of property within wealthy families, with a subtext of helping to ensure that the heir to all that property was the biological child of both contracting families. And make no mistake, the contract was between families, not individuals. The wives were basically part of the property being distributed.

    The idea that such property contracts should apply to the common folk came much, much later.

  46. Mikey says:

    @Another Mike:

    This is why the supreme court will kick this back to the states, if they are wise.

    SCOTUS doesn’t really care whether the primary motivator for marriage is love or children or inheritance or the ability to dress up as Han Solo without your wife laughing at you (at least not on the outside). They have one overriding concern: whether the laws barring same-sex marriage in some of those states violate the equal protection clause of the 14th Amendment.

    If those laws do, then the issue simply cannot be kicked back to the states.

  47. DrDaveT says:

    @Another Mike:

    It makes sense to allow a state-sanctioned same-sex union apart from marriage.

    OK, you’ve got me totally confused now.

    You are OK with state-sanctioned same-sex unions with all the same rights — including adoption, raising children, inheritance, etc. — as marriage.

    And yet you seem to think that there is something special and privileged about having both a father (no matter how abusive) and a mother (no matter how addicted) that sets heterosexual couples apart as invariably superior, to the extent that the alternative should be banned.

    And somehow animal biology, which we share with the bats and newts and octopi, is important in this moral question.

    I tell you what. The only common thread I see above is that you are starting from the answer you know is right — “homosexuals are icky” — and grasping at whatever argument comes to hand to try to support that. Even if that argument would also militate against childless couples, single parents, divorce, adoption, surrogate parenthood, in vitro fertilization, and many other common practices that you seem to have no problem with.

    AA has it right. The first step is admitting you have a problem. It’s time.

  48. DrDaveT says:

    @Another Mike:

    I think I have described the substantive differences between marriage and same-sex union well enough.

    No, you haven’t. At all.

    You’ve mostly noted that heterosexual couples can generally bear natural children. But you’re OK with couples who can’t, or who choose not to, or who adopt children not biologically theirs.

    You’ve noted that having two parents is better than having one — but you’re OK with permitting single parents.

    You’ve claimed that it’s better to have both a mother and a father raise you — but you’re OK with permitting single parents.

    So if you’re OK with all of these exceptions to your asserted rule, what is different about same sex parents that makes them unacceptably worse than single parents, or no parents, or adoption, or childless marriages, or incompetent heterosexual parents? That’s the part you haven’t explained yet. I think I know the answer, but I doubt I’ll get you to admit it.

  49. HarvardLaw92 says:

    @DrDaveT:

    Going further, we as a society do not condition access to marriage on either the ability to or the intention to procreate, so the entire “marriage is meant to produce stable homes for children”, while anecdotally interesting, is not related to the question of whether the law must treat same sex marriages and heterosexual marriages as functionally equivalent, and therefore entitled to the same protections under law.

    That having been said, I’ve always found that line of argument to be flawed. Are we supposed to believe that straight society will just stop getting married and/or stop having children, caring for those children and raising those children if gays are allowed to get married?

    The answer to all of those questions is obviously a resounding “no”, which is why that argument has been turned away by court after court after court. It’s a non-sequitur attempt at rationalizing “ick, those people aren’t the same as me”, and little more.

  50. DrDaveT says:

    @HarvardLaw92:

    The answer to all of those questions is obviously a resounding “no”

    Not to mention the incredible boon that same-sex marriage would be to the orphans and unwanted children of the world. The US market for adoptable babies would grow by an appreciable fraction overnight.