By the end of the day on Wednesday, it appeared a majority of the U.S. Supreme Court was ready to strike down the Defense of Marriage Act, the heinous piece of legislation signed into law by Pres. Bill Clinton in 1996, denying a certain category of Americans an inalienable right the rest of us enjoy -- the right to marry the person we love.
Regular readers of this page should not be surprised when the Reformer restates its position that marriage equality is a constitutional right that cannot be denied by legislative bodies, judicial fiat or popular vote.
Though by all indications it appears the Supreme Court will render a narrow decision and not rule on the basic constitutionality of denying to one class of citizens what is granted to all others, the Reformer steadfastly believes the time is now to get past this overt homophobia and right this wrong.
Theodore Olson, arguing against Proposition 8, said "It walls-off gays and lesbians from marriage, the most important relation in life, according to this court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not OK."
Olson and co-counsel David Boies also urged the court to broaden its eventual decision, and not just limit it to Prop 8.
"For one to say that the Supreme Court should leave the question of marriage equality to the political processes of the states is to say that states should remain free to discriminate -- to impose this pain and humiliation on gay men and lesbians and their children -- for as long as they wish, without justification."
The opponents of same-sex marriage have expressed concern that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.
"The age-old definition of marriage distinguishes between relationships of a man and a woman and all other types of relationships, including same-sex relationships," noted the attorneys speaking in defense of Proposition 8. "This distinction is rooted in a basic biological fact that goes to the heart of the state’s interest in regulating marriage: The unique capacity of intimate relationships between men and women to create new life."
As Maureen Dowd wrote in the New York Times, the argument that marriage should be reserved for those who procreate, is ludicrous.
"Sonia Sotomayor was married and didn’t have kids. Clarence and Ginny Thomas did not have kids. Chief Justice Roberts’ two kids are adopted. Should their marriages have been banned? What about George and Martha Washington? They only procreated a country."
And as the editorial writers for the Economist noted: "The idea that marriage has been one unitary and unchanging institution over time is ridiculous. The allowance of interracial marriage, no-fault divorce and marriage outside of the church have all changed the institution. It seems odd in an age when divorce, cohabitation and alternative family structures are so common, that the desire of gay people to actually take the binding vows of marriage would be considered a threat."
The argument leveled by some opponents, which includes Justice Antonin Scalia, that same-sex marriage is harmful to children has been thoroughly debunked, not only by numerous studies, but by the observations of average Americans who have seen their same-sex friends, family members and neighbors raise children in a loving, supportive and health household.
Justice Anthony Kennedy, who will most likely be the swing vote between the liberal and conservative wings of the court, struck an emotional note when he said "There are some 40,000 children in California ... that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?"
But, as Salon’s Alex Pareenel wrote, "If the state is interested in ensuring the welfare of children, there are a lot of things it could do that would be much, much more effective than banning gay marriage. It could provide universal childcare for working people, for example. It could spend more on nutritional food in schools, hire more social workers and pay them a great deal more."
Olson also shot down the argument posed by those who believe same-sex marriage will become a slippery slope to polygamy, bestiality and child brides.
"You’ve said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it’s prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status."
Those arguments aside, what it all boils down to, as Erin Fuchs noted, is homophobia. "If gay couples can’t have the same rights as straight couples, then they’re simply not equal."
And as Frank Bruni, a New York Times columnist wrote, laws such as DOMA "codified unequal treatment of gays and lesbians and, in doing so, validated the views of Americans who see us as lesser people. If our love is suspect, then so is who we are. No two ways to interpret that."
Look no further than Scalia for a representative sample who think homosexuals are lesser people.
"Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home," wrote Scalia, in a dissenting opinion in Lawrence v. Texas, which struck down the state’s sodomy laws. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."
There are some among us who feel that way about other races, creeds, cultures and religions, but they are rightly condemned as racists and bigots and given no standing in the law. Why should it be any different with the opponents of marriage equality?
The Reformer just wants the Supreme Court to answer this simple question: Does the Constitution of the United States allow a class of people to be denied their rights simply because they belong to that class?
Similar arguments have been made against allowing women to own property, mixed-race marriage and equal opportunity and access to services and education. Those arguments were made before the Supreme Court, which eventually made the right decision. We hope the court doesn’t hesitate at the brink in this case and also makes the right decision.