I’ve been off-line for a few days, but I wanted to follow-up on our meeting about gay marriage at the Supreme Court. Overall, I thought we had a good discussion and hit the major issues before the Court. But, is it just me, or was this another meeting in which we focused a lot on a tangential issue? We ended up talking a lot about gay people, rather than the prejudice against them, the extent of which really was the main issue before SCOTUS. We debated whether gay and lesbian people make better or worse parents, what causes people to be gay, etc.
I think this kind of missed the point of what the gay marriage debate is all about. Gay rights, including the right to marry, is not really about what kind of parents, or neighbors, or employees, or hockey players gay people are, is it? It’s about whether the bigotry directed at them because they are gay is omnipresent enough to justify designating homosexuals as a class of citizens that need a heightened degree of protection in order to enjoy equal rights under the law. They are not on trial here; we are.
Of course, opponents of gay marriage say this is not the issue at all. That’s why they argue that homosexuality is not a class deserving “heightened scrutiny” under the law When a group of Americans is protected by the heightened scrutiny standard, laws that treat them differently from other people must clearly advance an “important” state interest, a standard that state gay marriage bans would be unlikely to meet. The Court has previously said that heightened scrutiny should apply when a group of people meets four criteria, and gay marriage’s opponents say that LGBT people meet none of them. They say that:
- Being gay is not an innate characteristic;
- Gay people are sufficiently different from straight people that they make inferior parents (i.e., that homosexuality affects one’s ability to function as a good citizen);
- LGBT people are no longer sufficiently discriminated against to merit extra judicial skepticism of laws that treat them differently;
- LGBT people no longer lack the political power to protect their interests and rights in the legislature.
This is what Rich was trying to get at, even though I had to coax the conclusions out of him. My opinions on all four of these questions are quite a bit different from Rich’s, but I think we spent too much time on Monday on #1 and #2, and not enough on #3 and #4. As part of #3, I was hoping for more discussion of the sources of anti-gay marriage sentiment. Bruce did a great job arguing that opposition to gay marriage can be rooted in concern for states’ rights and over federal power. But we know that’s not true for many other people. That matters because it helps to answer #3.
Still, as long as we’re on the point of gay parenting, there has been a development. The American Academy of Pediatrics just came out in favor of marriage equality. The organization’s statement said they evaluated all of the studies of gay parenting and found the assertion that they make worse parents than straight parents to be false. (Here is the NYT front-page story on the AAP’s turn-around. McClatchy story here.) In fact, the Academy said that gay marriage fosters the health and well-being of children. Point to Mike. Rich might argue, as he did on Monday night, that the Academy is just being politically correct and is afraid to buck the gay lobby. But, it is impossible to prove – or disprove! – something like that.
Relatedly, public opinion is swinging so rapidly on gay marriuage that conservative (mainly Republican) political leaders, who are older and thus still opposed to it, are in danger of becoming out of step with their constituents. (FWIW, I doubt that will be true for a long time, at least in the reddest districts.)
Lastly, here is the article I mentioned that argued that the Court could save the Republican Party years of grief by settling this issue once and for all. It says the GOP is on the losing side of gay marriage and a broad ruling enunciating a right to gay marriage would save the party from years of bitter battles to overturn state bans on the practice. As you may know, a big RNC internal review issued this week on how to broaden the party’s appeal fell short of advocating for marriage equality, but it did make some noises in favor of lightening up on gay issues.
We’ll find out on or about June 30.