Tuesday was the last chance for bigots to explain to the Supreme Court why it is constitutional to deny equal rights to gay people because you think they have icky sex. The Court had two questions to consider: First, is it okay for states to prohibit gays from doing marriage together because “tradition” and “ewww gross” and “states’ rights” and “some people don’t like it” and “WON’T SOMEONE PLEASE THINK OF THE CHILDREN?!?!”? Second, is it okay for states that prohibit marriage equality to tell already gay-married gay couples from other states that their marriages do not count, because this here is Kentucky (for example) damnit, and we do not like you liberal state gay types, for America? And freedom?
As you may have been able to suss out, if the Court decides that the answer to Question 1 is, “Why yes, the Constitution does protect everyone, even The Gays,” Question 2 is moot and irrelevant because GAY MARRIAGE FOR EVERYONE, HOORAY! And if the Court for some reason decides that the Constitution is for straights only, well, sorry The Gays, but you’re probably good and screwed, no matter which state issued you a marriage license, sorry.
So, after reading all those eleventy thousand pages of oral argument transcripts (YOU’RE WELCOME), do we still think the Supreme Court is gonna throat-cram equality down everyone’s throats? Yes we do! Because while the conservative justices did their job real good of considering all the dumb, baseless arguments against equality, even they seemed not especially persuaded, and also, it is the 21st century, and the Supreme Court has previously ruled that it is not SO icked out by The Gays that it thinks the Constitution says you can treat them like second-class citizens. So let’s dive in and sexplore!
Is it OK to discriminate against gays if you really don’t like them? (No.)
The morning started with Justice Ruth Bader Ginsburg immediately destroying this absurd states’ rights argument, with a nice and easy softball question to Mary L. Bonauto, the attorney representing The Gays who would like their states to let them get married please:
What do you do with the Windsor case where the court stressed the Federal government’s historic deference to States when it comes to matters of domestic relations?
Bonauto answered that LIKE A BOSS:
States do have primacy over domestic relations except that their laws must respect the constitutional rights of persons, and Windsor couldn’t have been clearer about that. And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides for families.
So there. Done. States do not have an unlimited right to deny equal rights, not under the Constitution or the Bible or anything. The end. Except that, sigh, Chief Justice John Roberts checked the dictionary, so he’s not so sure about that:
The argument on the other side is that they’re seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.
And obviously, the chief justice forgot to check THE BIBLE, where marriage is defined as a man married to dozens or even hundreds of wives, plus common-law married to his harem of back-up sex partners, some of whom he purchased from some dudes whose daughters he raped. But sure, “a man and a woman.” Whatever.
Justice Anthony Kennedy also looked it up and read it wrong:
One — one of the problems is when you think about these cases you think about words or cases, and — and the word that keeps coming back to me in this case is — is millennia, plus time. […]
This definition has been with us for millennia. And it — it’s very difficult for the Court to say, oh, well, we — we know better.
Um, it may be difficult to say if your name is Justice Kennedy, but it’s also kind of your job? (Unless Rep. Steve King’s bill to strip the Supreme Court of the authority to rule on marriage issues succeeds, which it will not, so yes, yes, Justice Kennedy, it is your job. You do it all the time.)
Justice Samuel Alito, another of the Court’s conservatives who usually says that nothing but the U.S. Constitution’s actual words matter, chimed in with another reason why maybe it’s okay to discriminate against gay couples:
Well, how do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Now, we can infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?
If only there were a justice on the Court who was better at Googling history and stuff. Oh hey, there is. Please explain this “traditional definition” to your colleagues, Justice Ginsburg, by way of a “question” to Ms. Bonauto:
But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.
Justice Antonin Scalia also comes out of the closet as a judge who is suddenly interested in how other countries do legal stuff.
For millennia, not — not a single other society until the Netherlands in 2001, and you’re telling me they were all — I don’t know what.
Yeah, that’s the justice whose brain is supposedly so brilliant, even if you don’t agree with him, you really can’t argue with him. Easy to see why, isn’t it?
But Plato was gay, right?
Justice Scalia reminds us that “ancient Greece” was cool with homosexuality, and even they didn’t have same-sex marriage, right? (He’s asking because he doesn’t know, but hey, it seems a reasonable and TOTALLY RELEVANT point.) So, you see, if the Greeks like Plato were cool with dudes doing buttsex, but they did not have dudes celebrating with penis cakes and registering at Macys, well, there ya go! That proves … a thing!
The conservative justices are also quite concerned that we haven’t had enough time — not even a “millennia” — to see whether this newfangled definition of marriage that many states have already adopted just might destroy the very fabric of society. (Spoiler: It won’t.) Justice Kennedy, for example, would like us to just sit tight for a while and wait and see:
Well, part of wait and see, I suppose, is to ascertain whether the social science, the new studies are accurate. But that — it seems to me, then, that we should not consult at all the social science on this, because it’s too new. You think — you say we don’t need to wait for changes. So it seems to me that if we’re not going to wait, then it’s only fair for us to say, well, we’re not going to consult social science.
Yes, we know you are also SHOCKED! that Justice Kennedy thinks we should ignore science. You know, like the Court did in 2014, when it ruled that it’s okay for employers like Hobby Lobby to ignore science and refuse to comply with the law because they “believe” things that are scientifically not true. BUT ANYWAY, WE DIGRESS.
Chief Justice Roberts does some Olympic-level gymnastics to offer the idea that if the Court decides this issue once and for all, it will not give Americans enough time to debate amongst themselves whether their fellow gays and lesbians deserve equal rights, and wouldn’t that be a terrible thing?
I mean, closing of debate can close minds, and — and it will have a consequence on how this new institution is — is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by — by the courts.
Justice Scalia, from the Vatican wing of the Supreme Court, then expresses his concern that some of his fellow Jesus bigots think gays are icky, so the Court probably shouldn’t hurt their feelings:
I’m concerned about the wisdom of this Court imposing through the Constitution a — a requirement of action which is unpalatable to many of our citizens for religious reasons. They are not likely to change their view about what marriage consists of.
But huh. If they’re never going to change their minds, what’s the point in waiting and seeing if they change their minds? Maybe the Court should just go ahead and let them know the Constitution does protect gay citizens too, tough if you don’t like it. Who knows? It’s all so confusing! Who are the nation’s most powerful judges to judge? (If that sounds familiar, it should. It’s the same argument the Sixth Circuit used when it re-imposed the ban on gay marriage in several states, by claiming that they were mere caveman judges and needed the Supreme Court to make that kind of call for them.)
And then Ms. Bonauto concludes with this mic-dropping statement:
And I will say before I sit down, if I may reserve my time, Your Honor, that in terms of the question of who decides, it’s not about the Court versus the States. It’s about the individual making the choice to marry and with whom to marry, or the government.
BOOM, SNAP, YA BURNT!
Then it’s Solicitor General Donald B. Verrilli’s turn to argue, on behalf of the federal government, that yeah, denying equality to an entire class of citizens because some people think it’s icky is NOT constitutional, ahem, any more than state-sanctioned segregation by race was constitutional, which is why the Supreme Court had to explain that to some of the hold-out states, and “why would we want to repeat that history”? Furthermore, if the Court decides to “leave this to the political process,” instead of putting an end to these discriminatory laws right now, “thousands and thousands of people are going to live out their lives and go to their deaths without their States ever recognizing the equal dignity of their relationships.”
And that is really effed up and not what America is supposed to be about, and now here’s the federal government mic-dropping some truth on you:
And what I would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable — untenable to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals. Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now. Thank you.
But can we discriminate against gays anyway? (No.)
John J. Bursch is Michigan’s special assistant attorney general, and he tries real hard to make the case for why his state and the other petitioning states of Ohio, Kentucky, and Tennessee should be allowed to keep treating The Gay like they are not actual human American beings:
We’re asking you to affirm every individual’s fundamental liberty interest in deciding the meaning of marriage.
“What Marriage Means to Me,” by Every Individual. Sure, that’ll go down well at the county clerk when your ex you’ve been divorced from for nigh on a decade decides the Bible means you’re still married and you can’t marry up with that COMMON WHORE.
Justice Sonia Sotomayor immediately smacks that down:
I’m sorry. Nobody is taking that away from anybody. Every single individual in this society chooses, if they can, their sexual orientation or who to marry or not marry. I suspect even with us giving gays rights to marry that there’s some gay people who will choose not to. Just as there’s some heterosexual couples who choose not to marry. So we’re not taking anybody’s liberty away.
Mr. Bursch tries to “but but but,” but Justice Breyer piles on:
What I heard was, one, marriage is fundamental. I mean, certainly that’s true for 10,000 years. And marriage, as the States administer it, is open to vast numbers of people who both have children, adopt children, don’t have children, all over the place. But there is one group of people whom they won’t open marriage to. So they have no possibility to participate in that fundamental liberty. That is people of the same sex who wish to marry. And so we ask, why? And the answer we get is, well, people have always done it. You know, you could have answered that one the same way we talk about racial segregation.
Mr. Bursch gives a long answer about “biology” and the States’ interest in procreation, even though everyone knows that is a dumb and terrible argument, because if that were the case, which it isn’t, then only couples who procreate would get married, and that’s not how it works. So then he claims that “it has to do with the societal understanding of what marriage means.”
But Justice Ginsburg already historysplained earlier in the day how that’s not a very good argument either because of how society’s understanding of what marriage means actually has changed, a lot, over the years. And Justice Sotomayor also points out that being married doesn’t guarantee good parenting anyway. Just look at all the married hetero dads who abandon their kids, like Deadbeat Joe Walsh. (Ok, she does’t actually mention him by name.)
Then even Justice Scalia becomes skeptical of Mr. Bursch’s argument, pointing out that he started by saying this wasn’t about marriage, but about who gets to make the decisions about marriage.
Is — is it your burden to show that it — it — it will harm marriage between a man and woman if — if you allow two men or two women to marry? Is that your burden? I thought your burden was simply to show that — that the State’s reason for this institution is a reason that has nothing to do, that is inapplicable to same-sex couples.
Why, it’s almost as if counsel for the bigots is desperately clinging to any argument he hopes might work, even though he’s contradicting himself! Which doesn’t stop him from continuing to insist that it’s all about teaching children that marriage is forever, and if you can’t have babies, there’s no point in getting married, and how you can’t just up and change definitions of marriage, all willy-nilly like that, and also he’s VERY CONCERNED about the “72 million children in this country,” who would not even understand what the point of anything is anymore, if the Court recognizes equality for gay couples. And then even heterosexual couples will start abandoning children too, for the first time ever. THINK OF THE CHILDREN!
There’s a fair amount of discussion about what level of scrutiny to apply to this case, which is just boring law talk no one cares about unless they’re a lawyer, so we’ll skip all that and get to THE VERY IMPORTANT MOMENT. Brace yourselves, this is important.
And here’s when they lost Chief Justice Roberts
Observe the precise second where even Chief Justice Roberts gets it:
I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?
It is, Chief Justice Roberts. Bravo, you’ve just stumbled upon the essence of how this is discrimination, pure and simple. And yet Mr. Bursch goes back to thinking of the children, again, which the justices have already suggested is a pretty lame argument, but he’s got nothing else. Except for that last super desperate idea that maybe you should just leave it to democracy to figure it out, because then people will “civilly discuss an issue and try to persuade each other through reason, love and logic.”
Justice Kagan then explains that “we don’t live in a pure democracy; we live in a constitutional democracy.” So no, we do not just leave every issue up to the voters to decide whether it’s okay to discriminate against each other. And then Mr. Bursch gets TOTALLY ROUND-THE-BEND DESPERATE.
“You can draw the analogy to the abortion context,” he says, “and I’m reluctant to bring that up” — but then he goes ahead with it anyway and reminds the Court that “the government cannot interfere in that private choice.” Do what now? How is the right to an abortion like a state’s right to deny marriage equality to gays and lesbians?
Our position is that the Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by – by forcing them to recognize and give benefits to anyone. That’s not the way that our fundamental rights doctrine works.
Oh. So just as the federal government does not have the right to get all up in your vagina, it also can’t get all up into marriage laws. (Yes, that IS crazy talk.)
And here is Mr. Bursch’s attempt at a mic-drop closing argument:
Your Honors, these are obviously very emotional issues where reasonable people can disagree. This Court has never assumed that people have acted out of animus when they’re voting in the democratic process. […]
But this Court taking this important issue away from the people will have dramatic impacts on the democratic process, and we ask that you affirm.
Would it be OK if just some states discriminate against gay couples please? (No.)
We won’t spend your entire day talking about what should be an irrelevant question before the Court. If the Court recognizes that gay couples in every state have a constitutional right to equality, this question is answered with a big fat, “Well, DUH,” because there will no longer be any states who can keep their precious equality bans.
Douglas Hallward-Driermeier, representing the already gay-married gays, makes a noble effort at trying to persuade the justices that even if they think gays who would like to get married can suck it, gays who are already married shouldn’t have to just because they move to a state with a Suck It Gays law on the books. His clients, he explains, have already created families — with children in them! — who would be harmed by a state stripping them of their marital status, and that is all kinds of wrong. Think of the children!
Chief Justice Roberts is initially concerned that if the Court does not rule that gay marriage is a constitutionally protected right, it would be unfair to force gay-hating states to recognize marriages from gay-loving states, because then you’re allowing those gay-loving states to “basically set the policy for the entire nation.” That’s a great point, Chief Justice Roberts! Eventually he and the rest of the justices seem to recognize just how dumb it is to even consider this question, which is all complicated and garbled and technical. Hey, you know what would simplify it and make it real easy? GAY MARRIAGE FOR EVERYONE!
Too Long; Didn’t Read
So for those of you who just wanna know if we are getting throat-crammed without all the who said this and that, what’s the answer? WE DON’T KNOW! But we’d like to think even a conservative justice or two is capable of recognizing there is literally no single argument for denying equality to gay couples that doesn’t come down to “But we don’t wanna!” They’ve kinda sorta done it before, despite Plato and ancient Greece and THE CHILDREN! and junk science that we should ignore anyway because it’s so new.
So, cross your fingers, say a prayer, do the hokey pokey, whatever works for you, but yeah, we are still cautiously optimistic that we are this close to GAY MARRIAGE FOR EVERYONE, HOORAY!