The Supreme Court's Problem: How to Back America Out of Anti-Gay Bigotry

Opponents of same-sex marriage don't like civil rights analogies. Tough luck: Doma is unconstitutional because it's unjust

US Supreme Court observers groaned when the well-regarded and Peabody Award-winning put the chances of the supreme court striking down the Defense of Marriage Act (Doma) at 80%. As far as predictability goes, supreme court decisions are somewhere between next week's weather and Tilda Swinton's career choices. Maybe, SCOTUSblog was itself playing at a little performance art, a commentary on the search for specificity and certainty in a series of cases that deal primarily with the ineffable realm of human emotions. Love, to be sure, but also the fear and unease, if not outright bigotry, that love flies in the face of.

It's a sign of progress, perhaps, that that defenders of Proposition 8 and Doma would just as soon pretend that emotions have nothing to do with their arguments. In some darker age, they might have been able to build a case that the "love" was, in fact, the thing that distinguished a heterosexual relationship from a homosexual one. That darker age was, of course, last year, when Protect Marriage Maine campaigned against that state's referendum to allow same-sex marriage with a statement that included the assertion:

"The basis of homosexuality centers around anonymous sexual encounters ... it is largely predatory."

Protect Marriage Maine scrubbed its site of that statement fairly quickly. In general, defenders of "traditional marriage" have learned to couch their arguments with increasing circumspection when it comes to outright judgments of morality. This has led, ironically, to a crude emphasis on the corporal: the central, almost only, basis for defending Proposition 8 lay in heterosexual couples being baby-makers - or, in the words of lawyer for the defense Charles Cooper:

"The state's interest and society's interest in what we have framed as responsible procreation is - is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated."

Let it be known for evermore that it was the defenders of traditional values that forced the highest court in the land to ponder just how it is that "with respect to procreation" - "at bottom", no less - same-sex and opposite-sex couples are "not similarly situated". Do I need to draw you a map?

If that weren't uncomfortable enough, Justice Elena Kagan opened the door to further explicit material with her reasonable observation that not even all opposite-sex couples marry in order to "procreate":

"If both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage."

And she wondered then whether Cooper's logic would allow the state to deny straight seniors a marriage license.

After allowing that asking "Are you fertile?" at the marriage desk would be "an unconstitutional invasion of privacy", Justice Antonin Scalia invaded our minds by implying that Kagan's notion of what is "too old to have kids" suffered from not having met the wily racist Strom Thurmond, who fathered his last child at the age of 74. Thurmond, Scalia said, "was not the chairman of the Senate committee when Justice Kagan was confirmed." Encouraged, apparently, by this anecdote, Cooper then agreed:

"Very few men outlive their own fertility."

Think about old men screwing, everyone! We might lose a lot of potential baby-making opportunities if that's the image we leave off on.

Scalia was, as usual, the episode's garish, garrulous villain, the kind of lusty misanthrope the word "harrumph" erupts from. Tuesday, he barked out leading questions to the somewhat hapless Cooper. "Mr Cooper, let me ... let me give you one ... one concrete thing," he sputtered at one point. "I don't know why you don't mention some concrete things." Which led him to passive-aggressively offer the point that:

"There's considerable disagreement among sociologists as to what the consequences of raising a child in a ... in a single-sex family, whether that is harmful to the child or not."

Sticking to the same two-layered script that all homophobes seem to be working from nowadays, Scalia was careful to distance himself from actually saying that GAYS WILL TURN THE KIDS GAY (or worse): "I take no position on whether it's harmful or not," he said, in a I'm-just-sayin'-here way, "but it is certainly true that ... that there's no scientific answer to that question at this point in time."

Questions of time and public opinion overshadowed the entire proceedings. Scalia, for instance, seemed to be especially aware that the tides of history and logic are eroding the tenuous intellectual framework that would deny the extension of rights to gay men and women. His insistence, at one point, that plaintiff counsel Ted Olson deliver the precise date at which denying marriage rights to homosexual couples "became unconstitutional" reads as Captain Queeg-like breakdown:

"I'm curious, when ... when did ... when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th amendment was adopted? Sometimes ... some time after Baker, where we said it didn't even raise a substantial Federal question? When ... when ... when did the law become this? When do you think it became unconstitutional? Has it always been unconstitutional? Was it always unconstitutional? When did that ... Well, how am I supposed to know how to decide a case, then if you can't give date when the constitution changes?"

He probably accuses his clerks of stealing his strawberries.

Ted Olson, sagely, interrupts this monologue at one point with an apt rhetorical response:

"When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"

In other words, the beauty of the American constitution is that we have discovered within it the tools to extend rights in cases where the question of "rights" wasn't even an imagined category 100 years before. This is how we live in a country where a black man is president even though he wouldn't have been allowed through the front door of the White House a century earlier. The rights themselves actually haven't changed that much; they've just been read to reflect a growing understanding of who deserves to have them.

That's actually the logic at the heart of the argument against the Defense of Marriage Act. "Traditional marriage" supporters argued that allowing two people of the same sex to get married somehow changes the definition of marriage (it's been all about babies otherwise!). The lawyers who argued against the Defense of Marriage Act Wednesday urged the court to a definition of marriage more elegant than the blinkered "insert-tab-A-into-slot-B" logic of the anti-equality crusaders. Changing the definition of who can get married, they say, doesn't change the definition of marriage; it expands the number of people who can enjoy it. Just as allowing different races to drink from the same water fountain doesn't make it any less refreshing, same-sex marriages won't make matrimony any revered, or vital.

People opposed to marriage equality don't like it when you make analogies to the quest for racial civil rights, and there's a simple reason why: they don't want to be thought of as bigots. But here's the thing: they're bigots.

I already regret writing that, because I know there are good people, kind people, out there who have what they believe to be principled moral arguments against same-sex marriage. If I were having a conversation with one of those people, I would not call them a bigot to their faces. As the people at Protect Marriage Maine realized a hair too late, it is difficult to make headway in a debate if you piss off your opponent.

So, the sensitivity to offending others that demanded that traditional marriage proponents talk about baby-making and not THE EVIL GAY muzzled those seeking marriage equality as well. Kagan drilled the lawyer defending Doma, Paul Clement, about his assertion that homosexuals were not being discriminated against, rather that Doma was just the kindly force of government defining a term ("marriage") so that everyone understands exactly what it is. "When Congress targets a group that is not everybody's favorite group in the world", Kagan posed:

"Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?"

The court did not record Kagan going, like, "I mean, duh" at the end of her question.

To call out those who supported Doma as being motived by "fear, animus and so forth" is to tell a truth that could hurt the cause. The lawyers arguing against the law themselves demurred when given the opportunity to label the motivations behind Doma: "I'm not saying it was animus or bigotry, I think it was based on a misunderstanding," said Roberta Kaplan, the lawyer for the original estate case that underlies the debate today. Even Attorney General Donald Verrilli, who made the most full-throated argument for calling Doma "discrimination at its most basic aspect", equivocated; of Congress's motivation for the law, he said:

"[I]t may well not have been animus or hostility. It may well have been... the simple want of careful reflection or an instinctive response to a class of people or a group of people who we perceive as alien or other."

In wrapping up his plea to keep Doma, Clement likewise pleaded that, hey, maybe gays should get married, but let's not rush things! "You have to persuade somebody you're right," he said:

"You don't label them a bigot. You don't label them as motivated by animus. You persuade them you are right."

He has something of a point. You don't change someone's mind by calling them a bigot. Anyone who's ever argued about anything with anyone else on the internet can corroborate the ineffectiveness of name-calling as a debate strategy.

You don't change any one person's mind, but you do change a country. The very tentativeness of the debate at the supreme court is itself a testament to the difficulty of exposing hatred and fear for just what they are, and of not letting people get away with the polite forms of racism or sexism or homophobia that occur in both courtrooms and social situations.

Yes, gay people are everywhere, they're everywhere and they're not ashamed of it - the toxicity of actively and obviously discriminating against a gay person is what makes fundamentalists just fume over Ellen and Bravo TV rather than get labeled a backwards weirdo like that Westboro Church guy. This premium on appearing civil, if not endorsing civil rights, is what Chief Justice John Roberts to seems to equate with being "a sea-change" in attitudes toward gay rights.

Baffled at how the country could go from 85 senators voting for Doma to, as he put it, "political figures falling over themselves to endorse your side of the case", Roberts asserted to Kaplan that it must have "a lot to do with the political force and effectiveness of people representing, supporting your side of the case." Kaplan said that she thought it had to do with a social shift, people beginning to believe that "no difference" could "justify this kind of categorical discrimination between gay couples and straight couples".

Roberts's response was revealingly petulant:

"You don't doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?"

Of course, he sees it that way: a faceless army of gay lobbyists, passing "same sex-marriage laws" - as though the point was to enshrine "same-sex marriage" and not just, you know, "marriage". The growth of gay rights has to spring from some top-down enforcement mechanism ... Roberts believes this, I suspect, because, like many conservatives, he quite understandably feels like somewhere the rules were changed over homosexuality's place in society: how we talk about it, react to it, address it.

But the thing is, the rules themselves haven't. The "rules", the law, are lagging behind justice. What's changed is what level of intolerance people will tolerate.

Civil rights is not a polite endeavor. The allusions and discursiveness of the arguments before the supreme court this week are just the most polished version of the truth. The way that we've gotten to where we are isn't by convincing people through reasoned discussion; it is because people are afraid to be thought of as bigots. Until the laws themselves change, I'm fine with that.

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