We have seen many laughable rationalizations for upholding bans on marriage equality over the years, and especially in the last few months before the Supreme Court rules, once and for all, that those bans are not constitutional. (Yes, that’s probably definitely we are pretty darn sure going to happen real soon.) Bigots say equality will mean the end of the world or at least make politicians get drunk and crash their boats into children. And it will cause a million more abortions and force dudes to have to explain periods to their daughters, can you EVEN IMAGINE.
Gays started doing legal marriage to each other in Massachusetts more than 10 years ago, though, and none of that has happened, so maybe the fretting pearl-clutchers are wrong? (They are.)
But one of the best (yeah, we mean worst, SARCASM) arguments against equality came from Michigan’s Special Assistant Attorney General John J. Bursch, during oral arguments before the Supreme Court on Tuesday, after all of his other arguments were clearly failing to persuade any of the justices:
And and you can draw the analogy to the abortion context. And I’m reluctant to bring that up, but, you know, in Roe v. Wade and Casey, this Court says the government cannot interfere in that private choice. That’s a fundamental right. In Maher, the Court says but a woman cannot force the government to come participate in that by paying for it. Likewise here.
For that one person out there who didn’t know, Roe v. Wade is the historic Supreme Court case that determined in 1973 that women have a right to terminate their pregnancies because it’s none of the government’s damn business what they do with their ladyparts. This is also, as far as we know, the very first time anyone holding a conservative position has approvingly cited that case, because ever since it was decided, social conservatives — the same schmucks who think gay couples are stealing their freedom — have insisted it’s not a legitimate ruling, and they’ve been trying to kill it with fire (and bombs and guns and anthrax) ever since.
But what does that have to do with marriage equality? Oh, nothing at all. That is why we are laughing at Mr. Bursch for drawing what he knows is a piss-poor analogy, which is why he’s “reluctant” to do it in the first place. A woman’s “private choice” to be a mommy or not be a mommy is in no way like a state’s not-private (because it is the state, see, which is by definition public, not private) choice to deny marriage licenses to couples bigots don’t like. So if abortion is a fundamental right, discriminating against gays is too. Wait, no, that is incorrect. And dumb. Where the hell did this guy get his degree — Jerry Falwell’s Liberty University “School” of “Law”?
Mr. Bursch mentions two later Supreme Court cases: Maher v. Roe, which found that the state cannot be forced to pay for abortions — that’s relevant because The Gays are trying to force states to pay for their weddings? — and Planned Parenthood v. Casey, which said (more or less), “Yo, did you not hear us the first time? Abortion is a legal fundamental right, sheesh!” So what do those cases have to do with marriage equality? Um, nothing again? Right! But in case the abortion comparison doesn’t work for you, Mr. Bursch has another analogy that also doesn’t work, except for the LOLs.
Lawrence said the government cannot interfere in private, intimate conduct. Our position is that the Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by forcing them to recognize and give benefits to anyone. That’s not the way that our fundamental rights doctrine works.
Y’all remember what the Lawrence v. Texas case is, right? The one that determined, way back in 2003, that doing buttsex is not a crime? Justice Scalia sure does; he’s still fuming about it, especially because his predictions are now coming true!
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
Scalia was right, of course, because the homosexual agenda has taken over America, with people no longer morally shaming The Gays for buttsexing and scissoring (even though that still happens all the time). Hell, even the lawyer who is there to argue against marriage equality is saying the 12-year-old judicial activism that codified sodomy is valid and right, which seems like a terrific way to alienate his guaranteed ally on the Court, and also a really terrible way to argue that because the government cannot toss your gay butt in jail for gaying, because how you fuck in the privacy of your own bedroom (or kitchen floor or shower or backseat of a car or whatever, that’s up to you, no judgment) is none of the government’s business, it must respect Michigan’s fundamental right to say “Gross, dude, marriage license denied.”
Is that not one of the dumbest and most desperate arguments for why states have a constitutional right to discriminate against gay couples? It sure is, and we should know, because we’ve read just about all of ’em. Here’s Justice Kagan explaining just how dumb it is:
See, to me it seems as though you are doing something very different that we’ve never done before, which is you are defining constitutional rights in terms of the kinds of people that can exercise them. And I don’t think we’ve really ever done that. Where we’ve seen a constitutional right, we have not defined it by these people can exercise it, but these people can’t, especially in a case where the claims are both rights-based and equality-based.
I mean, it would be like saying in Lawrence, well, there’s only a right to intimate activity for heterosexual people and not a right to intimate sexual activity for gays and lesbians. And, of course, we didn’t do that. Once we understood that there was a right to engage in intimate activity, it was a right for everybody.
That’s such a good explanation for why Mr. Bursch is just flat-out dead WRONG that even he responds, “Absolutely,” probably while Justice Scalia quietly drives a rusty nail into his thigh.
We can’t really blame Mr. Bursch for trying to do his job by coming up with a reason, any reason, for the Court to rule that states like his may continue to discriminate against gay couples. None of his other, more traditional arguments — ancient traditions, think of the children, liberty, blah blah — seemed persuasive (because they are not). But damn if his abortion-and-buttsex reasoning isn’t so incredibly bad that yes, we are that much more convinced the Supreme Court will recognize that of course the Constitution protects gays and lesbians, so open up and say “ahhhhhh” because GAY MARRIAGE FOR EVERYONE! is coming.