In it, but not of it. TPM DC
Sweeping cultural change coupled with past decisions by the Supreme Court have limited the options the states who continue to ban same-sex marriage have to defend those prohibitions. If gay couples are kept from marrying because of state-sanctioned "animus" -- an intent to deny certain people their rights -- there is little escaping a constitutional violation. As a result, the defenders of gay marriage bans had to come up with a new argument to justify the bans.
"[T]he State's whole point is that we're not drawing distinctions based on the identity, the orientation, or the choices of anyone," John J. Bursch, the solicitor general of Michigan, said during the oral arguments in the case, Obergefell v. Hodges. "The State has drawn lines, the way the government has always done, to solve a specific problem. It's not meant to exclude."
The "problem" that bans on same-sex marriage were solving, in Bursh's view, was keeping biological parents attached to their children. How allowing gay couples to marry threatened that attachment puzzled even some of the justices -- Justice Elena Kagan called the reasoning "inexplicable." But even more bewildering, to longtime observers of the issue, is how divorced such logic was from the original motivation for the bans.
"The states’ arguments don’t pass the straight face test, no pun intended," Judith Schaeffer, vice president of Constitutional Accountability Center, a D.C.-based legal organization, said in an interview with TPM. "These are ridiculous arguments that are being made to cover up the fact that these discriminatory laws are motivated by a desire to keep gay people out of this important legal relationship."
To say same-sex marriage bans were never meant to "exclude" anyone is to ignore years of anti-gay sentiments -- vitriolic posters and inflammatory commentary -- not to mention the comments made by elected officials when defending their opposition to same-sex marriage and enacting gay marriage bans.
"In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing," then-Sen. Rick Santorum (R-PA) said in 2003. "The idea is that the state doesn't have rights to limit individuals' wants and passions. I disagree with that. I think we absolutely have rights because there are consequences to letting people live out whatever wants or passions they desire. And we're seeing it in our society."
Then-Minnesota state Sen. Michele Bachmann (R), meanwhile, claimed in 2004 that a federal marriage ban was necessary because gay people were "specifically targeting our children," and that if same-sex marriage was allowed to become legal in some states "all schools will begin teaching homosexuality."
And just last year, Rep. Louie Gohmert (R-TX) said that justices ruling in favor of same-sex marriage were in "need of some basic plumbing lessons."
But it’s not just the firebrand statements made by hardliners that reveal the true aims of the gay marriage bans being scrutinized by the Supreme Court. An examination of the history of gay marriage bans and how they came to be strongly suggests that the latest reasoning touted by their defenders is a last-ditch effort to salvage the bans, particularly after the Supreme Court’s United States v. Windsor decision, which struck down the U.S. law barring federal recognition of same-sex marriages in states where they are legal.
"Obviously the supporters of the state laws have to convince the courts that it is based on something other than animus against gays and lesbians," Erwin Chemerinsky, dean of UC-Irvine School of Law, told TPM. "So what they’ve tried to turn to as an alternative is this procreation argument."
One need only to look at the legislative debates when the bans were originally being considered to see both homophobic undertones and explicitly anti-gay remarks.
"It is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage," said Oklahoma state Sen. James Williamson (R), when the state was weighing his constitutional amendment against same sex marriage in 2004.
"It'll be a sad day when queers and lesbians are allowed to get married … and kiss in front of the courthouse," said Tennessee Rep. Eric Watson (R) in support of the state's 2006 anti-gay marriage constitutional amendment, one of the bans at stake in the current Supreme Court case.
"If a marriage exists, that raises a whole lot of other rights and privileges ... Who knows how many homosexual marriages there would be?" said Florida state Sen. John Grant (R) -- who sponsored the state's gay marriage ban -- objecting to the idea of gay couples receiving tax benefits and other entitlements.
Then-Assemblyman William "Pete" Knight (R), who pushed a number anti-gay marriage measures, said the legislation "protects California from being forced to cross the line from a position of tolerance to one of government promotion of the homosexual lifestyle."
William "Pete" Knight, at the time a California GOP assemblyman, said gay marriage would "cross the line from a position of tolerance to one of government promotion of the homosexual lifestyle."
And such attitudes didn’t end at the state level. As Justice Kagan noted during the Windsor hearing, a 1996 House GOP report accompanying federal anti-gay marriage legislation explained: "Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality."
The report goes on to quote then-Rep. Henry Hyde (R-IL), who, during markup said, "[S]ame-sex marriage, if sanctified by the law, if approved by the law, legitimates a public union, a legal status that most people … feel ought to be illegitimate. … And in so doing it trivializes the legitimate status of marriage and demeans it by putting a stamp of approval … on a union that many people … think is immoral."
The federal Defense of Marriage Act and the state marriage bans were a reactive measure by conservatives to the "threat" of growing gay rights protections. The first round came when Hawaii came close to seeing same-sex marriage legalized due to a legal challenge in the mid-1990s. The second round, in the early 2000s, gained momentum after a Massachusetts court gave gay couples the right to marry there. The anti-gay measures also proved a useful tool in driving conservative voters to the polls during a tight election cycle.
"They’re not appearing out of nowhere," Roberta Kaplan, the attorney who argued against DOMA in the Windsor case, told TPM. "All the laws that are being passed are motivated by things happening in the wider world that are putting fear into the minds of state legislators that they need to do something to stop gay people from being treated equally."
Furthermore, in many places, constitutional amendments limiting marriage to straight couples were passed on top of legislative measures already in place banning gay marriage.
"None of these laws were technically necessary. None of these states allowed gay people to marry," Kaplan said, particularly in places where constitutional amendments were passed on top of previous statutes. "They were passed to make damn well sure to make it impossible to treat gay couples the same under the law."
Distancing the bans’ from their discriminatory past is their defenders' only hope after the Windsor decision, where the Justice Anthony Kennedy -- believed to be the swing vote on this issue -- wrote that DOMA was motivated by an anti-gay animus that could not be overcome by any legitimate government interest.
"The legislative history of these laws was all about preserving what they called 'traditional' marriage, the procreation argument really doesn't appear until relatively recently in the litigation," Chemerinsky said. "The perception is that 'tradition' by itself isn’t going to be enough to convince [the Supreme Court] -- especially Kennedy."
Yet one justice seemed very receptive to the argument that gay marriage bans were not the result of animus toward gays, pointing to ancient Greece and suggesting that the Greeks were open to gay relations while not not allowing gay marriage. "So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?" Samuel Alito asked, somewhat rhetorically.