January 25, 2013
By Jacob Combs
Naturally, there are several candidates for the distinction the title of this post refers to. Read through the Supreme Court brief filed by the proponents of Proposition 8 on Tuesday (set aside an afternoon for it–it’s 65 pages long) and what you’ll find is an argument in defense of the California constitutional amendment that is well-developed but fundamentally rooted in a worldview that feels downright old-fashioned. And that’s because of the one thing the proponents of Prop 8 just don’t get: in the United States of 2013, marriage isn’t all about having kids. It’s about love.
This isn’t to say that procreation and child-bearing aren’t important–they are, and marriage is certainly an institution that allows for and encourages an optimal environment for the raising of children. But the reason for this isn’t the fact that marriages beget children, it’s the fact that marriages create the space for the love and commitment in which children can flourish.
The proponents of Prop 8–defenders of marriage though they proclaim to be–do not want to talk about love and commitment. They want to talk about responsible procreation, and their brief is filled (seriously–to the brim) with references to the “biological reality” that only the union of opposite-sex couples can create new life. This, they say, is enough of a reason to limit marriage to opposite-sex couples only.
But in hammering this argument home, Prop 8′s proponents miss the law’s most significant effect, which is the face that it denies loving, committed same-sex couples the ability to create a legal union that nurtures their relationship and, if they so desire, that creates an optimal space for raising their own children. This is an argument of love and not procreation, and this is much better suited to a 21st century discussion of the institution than one that focuses narrowly on the nuts and bolts of how children are brought into the world.
Not surprisingly, the brief that Prop 8′s proponents filed with the Supreme Court this week focuses almost entirely on the nuts and bolts argument. Consider, for example, the following choice quotations from their filing:
- “The record of human history leaves no doubt that the institution of marriage owes its existence to the undeniable biological reality that opposite-sex unions–and only such unions–can produce children” (32).
- “The animating purpose of marriage is not to prevent gays and lesbians from forming families and raising children. Rather, it is to steer potentially procreative conduct into stable and enduring family units in order to increase the likelihood that children will be raised by the mothers and fathers who brought them into the world” (47).
- “It is plainly rational for the State to make special provision through the institution of marriage to minimize the social risks uniquely posed by potentially procreative sexual relationships between men and women” (48).
It’s worth examining these statements in turn in order to reveal just how much of a straw man argument they add up to in the aggregate. In the first, the proponents stress (once again) the “biological reality” that only opposite-sex couples can produce children. That is indeed a biological fact, and one that nobody on either side of the Prop 8 case disagrees with. But the proponents go on to argue that the “animating purpose of marriage” is to channel opposite-sex couples’ sexual unions into “stable family units,” and that thus it makes sense for a state to encourage marriage as a sort of insurance policy against accidental pregnancy.
This argument, while perhaps logical, is in the end mostly tangential to Prop 8 and the central question of the court case challenging its constitutionality. Prop 8′s proponents make a point to continuously push the argument that it is rational for a state to encourage marriage for opposite-sex couples, but they never successfully make the logical connection as to why it would be necessary for a state to exclude same-sex couples in order to further this societal interest in responsible procreation. At the district and circuit court levels, and now at the Supreme Court, the proponents have been unable to explain how Prop 8, in any way, induces opposite-sex couples to marriage, so they spend their time instead attempting to divert attention to the importance of procreation and to the fact that same-sex couples just can’t make babies on their own.
Besides the procreation argument, the other justifications put forward by the Prop 8 proponents are equally flimsy and, in fact, contradictory. For example, the proponents argue that Prop 8 was a rational attempt by California’s voters to “restore democratic authority” based on their belief that marriage equality advocates had “‘gone behind the backs of voters and convinced four activist judges’ of the California Supreme Court ‘to redefine marriage.’” The amendment, they argue, simply returned the question of marriage equality to the democratic process.
But in another part of their brief, the proponents write that “characterizing Proposition 8 as ‘withdrawing’ or ‘eliminating’ rights is misleading,” since the signatures to place the measure on the ballot were submitted prior to the California Supreme Court’s decision legalizing marriage equality in 2008. Prop 8, the proponents claim, allowed the people of California to “proceed with caution when considering a fundamental change to the institution.”
By making this argument, the proponents are attempting to have it both ways: either Prop 8 was designed to “restore democratic authority” following an activist court decision or it was an attempt to “proceed with caution” before that court could ‘redefine’ the institution of marriage. It can’t be both.
To be fair, the section sections of the proponents’ brief which address the procedural arguments that do not pertain to the central question of Prop 8′s constitutionality are much more compelling. They argue persuasively in favor of the Supreme Court granting them standing to defend the law in federal court, writing that Supreme Court precedent holds that “State law determines who is authorized to assert this interest on behalf of the State” and that the California Supreme Court decision (written at the behest of the Ninth Circuit) granting the proponents authority under California law to represent the interests of the state should hold sway at the high court.
In addition, the proponents take issue with the Ninth Circuit’s decision to base its opinion striking down Prop 8 on the Supreme Court ruling in Romer v. Evans, when the people of Colorado passed a constitutional amendment repealing any existing state or local legal protections for gay and lesbian individuals and prohibiting any branch from recognizing such protections in the future. They take issue with the idea that Romer prohibited California from withdrawing the protections of marriage after it had granted them, and point out correctly that Romer affected a broad swath of legal protections for gays and lesbians, whereas Prop 8 had a significant but much more narrow effect.
In the end, however, it is these issues–the question of standing, the application of Romer, the real effect of Prop 8′s withdrawal of the word ‘marriage’ but not the rights and responsibilities of the institution–which will be the central concern of the oral arguments held at the Supreme Court on March 26. The responsible procreation argument, while it may be addressed, will most likely be seen as a distraction from the real issues presented by the case.
When Prop 8 was struck down at the district court level, Judge Vaughn Walker wrote that marriage is about adults having “happy, satisfying relationships and form[ing] deep emotional bonds and strong commitments.” In its decision modifying Judge Walker’s ruling but agreeing that Prop 8 violates the Constitution, the Ninth Circuit wrote that marriage is “the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.” Although the proponents of Prop 8 raised the responsible procreation argument at both the district and circuit court levels, each court rejected that framing, focusing instead on the fact that we as a society have come to look at marriage as a institution based around love and commitment and not simply as a channeling of the procreative act.
As the proponents note in their brief, the Supreme Court decision in Loving v. Virginia, which struck down bans on interracial marriage as unconstitutional under the Fourteenth Amendment, held that marriage is “fundamental to our very existence and survival.” That’s true for straight people, and it’s true for gays and lesbians as well. This spring, the Supreme Court would do well to heed its own words from 1967, not the proponents’ responsible procreation argument, and affirm that marriage in modern America is, at heart, about love.