Short Review of Oral Arguments in Hollingsworth v. Perry

Yesterday the Supreme Court heard arguments for and against California's Proposition 8 in the case of Hollingsworth v. Perry. One thing I found amusing, was Justice Elena Kegan's use of the well worn liberal argument that if we do not exclude infertile heterosexual couples from marriage then why should we exclude same-sex couples on the basis of infertility. Let's look at this closer. First, infertile heterosexual couples are the exception, not the rule. Justice Kegan asked the plaintiff in favour of Proposition 8 if we should not allow marriages between people of 55 years or older because, according to her, they are infertile. The spectators naïvely laughed when Hollingsworth said that it's rare that even in that case both parties would be infertile, because most men are fertile their entire lives. Also, I believe Justice Kegan's comment about pro-creation being impossible in a couple 55 years of age or older is a bit uninformed. I would rate it on the same level of faux pas as Barack Obama's "bayonet" comment during the Presidential Debates. There are reports going back hundreds of years of women giving birth well over the age off 55, and into their early seventies. So, there is a very small number of older couples who remain fertile, but there are absolutely no same-sex couples who are capable of pro-creating by themselves.
During the proceedings, Solicitor General Donald B. Verrilli summarily said during his presentation of the amicus curiae, that California did not have the right to deny same-sex couples the right to marry because it already gives them many other rights, such as adoption and domestic partnership. I don't know, but if I were a state politician, to me that would sound like a reason to not give same-sex couples any more rights than they already have, because if you do, you'll have same-sex "marriage" forced upon you.
Not surprisingly, the respondents brought up the case of Loving v. Virginia. I have already talked about how same-sex couples and interracial couples are not comparable, but the Justices raised some other important points about that difference. Justice Kennedy, referring to interracial marriage when it was compared to same-sex "marriage" by the respondents, said:
"It was hundreds of years old in the common law countries. This was new to the United States."
It had already been mentioned by Justice Alito earlier that same-sex "marriage" has only been around for, at most, 13 years.
I believe what Justice Kennedy was alluding to is the fact that interracial marriage had already been present in many parts of the world hundreds of years before Loving v. Virginia. There is no comparable history with same-sex "marriages."

Please Leave Marriage Alone

 

The Supreme Court will hear two important cases this week about marriage. Cases that some people may call the Roe v. Wade or Loving v. Virginia cases of our time. On 26 March, the Supreme Court will begin hearing oral arguments for and against California's Proposition 8, a statewide referendum in which the voters of one of the most liberal states in the nation, less than 4 1/2 years ago, chose to define marriage as the union between one man and one woman, and SCOTUS will begin hearing arguments on the constitutionality of the Defense of Marriage Act (DOMA) on 27 March. Most people in support of traditional marriage would agree that the Prop 8 case is the more important of the two. If Prop 8 is struck down (God forbid), it will set a precedent meaning that states do not have the right to define marriage as the union of one man and one woman. DOMA is the less important of the two cases, and, in my opinion, I really don't care about the outcome of it. DOMA was passed by a bipartisan congress and signed by then President Bill Clinton in 1996. One of the reasons DOMA gained so much bipartisan support is because at the time it was said that the passage of DOMA would stifle efforts from conservatives to ratify a Federal Marriage Amendment. 

Even if the court struck down DOMA, this author doubts it would make a large difference in the situation surrounding marriage in this country. The only difference may be that the federal government may be obligated to recognize marriages as they are recognized by the state. Some conservatives have said that liberals are right about DOMA, but for all the wrong reasons. In this authors opinion, as much as I am opposed to same-sex "marriage," I don't care if the federal government recognizes any marriage that is legal in the state in which the couple is living. For example, if two people of the same sex are "married" in Massachusetts and still living in a state that recognizes same-sex "marriage," fine, let the federal government recognize it, but if two people of the same sex were married in Massachusetts and now live in Texas, that should not be recognized, because it's not recognized in the state in which they are living and (therefore probably) filing for taxes.

   Of course, not recognizing marriages on a federal level that are recognized at the state level in which a couple may be living is a large part of what the Defense of Marriage Act does. The most important part of DOMA, however, and the part that should either be upheld or reinstated as a separate law, is the affirmation that no state shall be required to recognize a same-sex "marriage" that is performed in another state. In actuality, no state is, or ever has been, required to recognize a marriage performed out of state that would not be legal if performed within the state. For example, under some circumstances, females as young as 13 can get married in New Hampshire. These marriages would not be recognized in most states because, in most states, one has to be at least 16, period, to get married.

   There are eight Supreme Court Justices whose votes regarding these cases can more or less be predicted. The remaining swing vote in Associate Justice Anthony Kennedy, whose record on homosexual rights is scattered. He voted to uphold the Boy Scouts of America's right to exclude homosexuals from membership, but voted to strike down sodomy laws in the landmark 2003 case Lawrence v. Texas. He also voted to strike down a Colorado law that prohibited municipalities from adding 'sexual orientation' to their anti-discrimination laws. So, all eyes are on Kennedy. I hope that Kennedy respects states' rights enough to leave the issue of marriage to the states, since the regulation of it is not delegated to the federal government in the Constitution and therefore, under the 10th Amendment, it should definitely be a state issue.

   Many people will cite Loving v. Virginia as a reason for the Supreme Court to rule in favour of same-sex "marriage." However, there are large differences between interracial marriage and same-sex "marriage." First, there has always been interracial marriage, albeit present at varying degrees in different parts of the United States and the world at different points of history. However, regarding same-sex 'marriage,' as noted in Hernandez v. Robles in 2006- "The idea that same-sex marriage is even possible is a relatively new one.   Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. [The Court of Appeals of New York does] not so conclude."

   Another large difference between interracial marriage and same-sex "marriage" is that there are many interracial individuals. The laws that were on the books in many states during the 1950's meant that these individuals couldn't get married at all, because any marriage would be an interracial marriage. Although Loving v. Virginia did not focus on this issue, it was a problem in many states at the time. That is not at issue in these same-sex "marriage" cases. I have never heard the social liberals cite the plight of intersex people as a reason to legalize same-sex "marriage." One reason probably being that true hermaphroditism is so rare that it's almost unheard of. If people want to make exceptions for certain intersex individuals (not transsexuals, there is a difference), such as true hermaphrodites, that is fine, but again, they are so rare that this issue would probably arise even less often than the North Carolina ban against double first cousins marrying. Therefore, the interracial individual problem that was present during the 1950's has no analogous counterpart in the debate about same-sex "marriage." 

   One of the largest reasons to preserve one man/one woman marriage is children. President Obama has said that fatherhood is important, and that daughters who do not have a father in their lives are more likely to become pregnant at a young age. Obama stressed the importance of fathers being in their childrens' lives at his Father's Day speech before he came out in support of same-sex "marriage." It baffles this author how he can honestly believe in the importance of fatherhood while at the same time supporting same-sex couples the "right" to "marry," which would also give them the right to adopt and lesbian couples the right to undergo in-vitro fertilization, meaning such children will not only not have their fathers in their lives, they will most likely never know who their father even is.

   Many people in favour of same-sex "marriage" will cite "Separation of Church and State" as a reason for legalizing same-sex "marriage." However, it should be noted, that marriage was a religious institution long before it was a legal or governmental institution. Therefore, if liberals want "Separation of Church and State," they should be advocating for an end to the governmental recognition of marriage altogether. Mandating the recognition of same-sex "marriage," however, goes against separation of Church and state because marriage is a religious institution.

   Unfortunately, Supreme Court proceedings are not televised, but the oral arguments in the Prop 8 case will be recorded and made available online on the Supreme Court's website the day after they take place. I, like many people, will be awaiting their verdict, and unanimously hope that Justice Anthony Kennedy, as well as his colleagues, choose what is best for our country and our children- one man and one woman, one father and one mother, for every generation.