Marriage Is a Punishment, Imply Defenders of Marriage

Marriage should be limited to unions of a man and a woman because they alone can “produce unplanned and unintended offspring,” opponents of gay marriage have told the Supreme Court.

By contrast, when same-sex couples decide to have children, “substantial advance planning is required,” said Paul D. Clement, a lawyer for House Republicans.

The LA Times calls this an “unusual defense” of marriage, which is a bit like calling the Pacific “moist”.

So the California Prop 8 trial has reached the Supreme Court, and apparently the anti-gay side’s lawyers have figured out that the “buttsecks is icky” and “Baby Jesus told me to hate you” lines of argument aren’t going to fly in a venue that has cross-examination (a legal term for “calling you on your bullshit”).

It is plainly reasonable for California to maintain a unique institution [referring to marriage] to address the unique challenges posed by the unique procreative potential of sexual relationships between men and women,” argued Washington attorney Charles J. Cooper, representing the defenders of Proposition 8. Same-sex couples need not be included in the definition of marriage, he said, because they “don’t present a threat of irresponsible procreation.

So what they’re saying is that the only reason the state has to have marriage in the first place is to provide unwanted and unplanned children with a stable environment. That if it weren’t for drunk guys shooting their cum up equally-drunk vaginas all over the place, no one would have to get married, shotgun or otherwise. So really, they’re doing the homos a favor by not imposing marriage on them, and all the nasty icky visitation rights and tax-filing status that come with it.

The first thing that jumped out at me was that this line of reasoning sophistry is so underpants-on-head retarded that it shows that the anti-gay-righs folks are running so low on arguments that they’ve scraped through the bottom of the barrel and are now serving up whatever they’ve found under the rocks below the barrel.

But the second thing was the stereotyping. They’re lumping me along with the irresponsible guys who get women pregnant and then refuse to take responsibility for their children. Me, and every guy who always carries a condom, just in case; every woman who makes sure she doesn’t get pregnant until she’s ready. Every mutually-infertile straight couple who use IVF or adopt children.

But even though I’m being insulted, I can’t even get that worked up about it. Because as Greta Christina points out, if they’re using this sort of argument, it’s because nothing else has worked, so they’re desperate. They’ve lost. But some of them haven’t realized that yet.


This morning, I got email from Robert Broadus at Protect Marriage Maryland, an organization formed to oppose gay marriage in Maryland (and also the repeal of DADT, DOMA, and generally stand in the way of social progress), about the Maryland bill to legalize gay marriage (which recently passed both houses, but hasn’t been signed by the governor yet):

It is important to understand that re-defining marriage is not about “equality,” “civil rights,” or even the word, “marriage,” as homosexuals in Maryland already have domestic partnership benefits, and have intentionally rejected civil unions at every opportunity.  Instead, re-defining marriage represents the hope of “acceptance” for their godless lifestyles, imposed on the rest of society via the government and the force of law.

(emphasis added)

Could Broadus make it any more plain that he’s a bigot, and that that’s his main reason for opposing marriage rights for gays? (And, not incidentally, that he thinks this approach is a good way to raise money for his cause.)

One reason why this matters is that animus played an important part in the Proposition 8 trial: basically, the Supreme Court decided that you can’t just pass laws against people because you don’t like them; that legislation has to provide an actual benefit or solve a real problem.

Indeed, in the Prop 8 ruling, judge Walker wrote:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

Proponents’ purported rationales are nothing more than post-hoc justifications. […] What is left is evidence that Proposition 8 enacts a moral view that there is something “wrong” with same-sex couples.

Yes, I realize that Maryland is not California. But to the extent that they’re similar, if there’s an anti-gay-marriage referendum in Maryland, and it passes, and it gets challenged in court, then Broadus is laying the foundation for an animus charge.

I would have thought he’d be more subtle about it, though.


This may be my favorite bit from the Prop 8 ruling yet (findings of law, p. 128):

To the extent California has an interest in encouraging
sexual activity to occur within marriage (a debatable proposition
in light of Lawrence, 539 US at 571) the evidence shows Proposition
8 to be detrimental to that interest. Because of Proposition 8,
same-sex couples are not permitted to engage in sexual activity
within marriage. FF 53. Domestic partnerships, in which sexual
activity is apparently expected, are separate from marriage and
thus codify California’s encouragement of non-marital sexual
activity. Cal Fam Code §§ 297-299.6. To the extent proponents
seek to encourage a norm that sexual activity occur within marriage
to ensure that reproduction occur within stable households,
Proposition 8 discourages that norm because it requires some sexual
activity and child-bearing and child-rearing to occur outside

Ooh, that’s gotta sting. “We tried to have sex and raise children within the bonds of holy matrimony, like you said we should, but you wouldn’t let us!”

Would you like your ass of fundie well done, or extra-crispy?

Prop 8 Ruled Unconstitutional

You’ve probably heard it by now, but a federal judge has ruled Proposition 8 unconstitutional (; mirror).

(In case you’d forgotten, Proposition 8 was a ballot initiative that took away millions of Californians’ right to marry, on the grounds that they love the wrong kinds of people.)

Any moment now, I expect to hear explanations of how earthquakes, wildfires, el niño, the poor box office showing of Mel Gibson’s next project, and Pet Shop Boys concerts are all expressions of God’s wrath.

/me raises a Cosmopolitan (which several sites list as a contender for the gayest drink ever) to the Californian gay community.

Update, 18:04: Tony Perkins of the Patriarchy Family Research Council criticizes the ruling, on the grounds that, well, one-man-one-woman is how it’s always been. He also compares this ruling to Roe v. Wade. Which, I can’t help noticing, the right-wingers still haven’t managed to overturn despite decades of trying.

No word from NOM NOM NOM yet.

Update, 18:17: NOM tweets

NOM Decries Federal Court Decision Invalidating Proposition 8. #prop8 #NO4M

Full text of their rebuttal:

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Update, 18:30: An obviously butthurt Heritage Foundation whines about “judicial activism”.

Update, 19:20: Newsweek/WaPo’s On Faith has a roundup of religious people’s reactions.

Update, 21:56: Hemant Mehta points out this kook fight, where Liberty Counsel bitches at the Alliance Defense Fund for not letting them help defend Prop 8 in court.

Prop 8 Trial: They Got Nuthin’

Just to remind everyone, in 2000, California passed Proposition 22, which said that California would not recognize same-sex marriages, even out-of-state ones. In 2008, the California Supreme Court ruled that Prop 22 was unconstitutional, and furthermore, that marriage is a fundamental right. This gave gays the right to get married in California. Then, later in 2008, Prop 8 amended the state constitution to say that only opposite-sex marriage is valid or recognized.

I mention this to make it clear that Prop 8 took away a right. A right that courts have called fundamental.

So anyway, Prop 8 was challenged in court, and we’re finally approaching the end, with closing arguments presented yesterday. The wheels of justice certainly turn slowly, and one can only hope that they grind exceedingly finely.

So you’d think that after months of lead time, both sides would bring their A game and try to make a compelling summary for why their position is correct. You’d be wrong, as witnessed by this exchange between pro-Prop 8 attorney Charles Cooper and judge Vaugn Walker:

Walker: “Why is it that marriage has such a large public role? What is the purpose?”

Cooper: “This relationship is crucial to the public interest. Procreative sexual relations both are an enormous benefit to society and represent a very real threat to society’s interest.”

Walker: “Threat?”

Cooper: “If children are born into the world without this stable, marital union both of the parents that brought them into the world, then a host of very important, very negative social implications arise…. The purpose of marriage is to provide society’s approval to that sexual relationship and to the actual production of children.”

Walker: “But the state doesn’t withhold marriage from people who cannot have children.”

Cooper: “It does not.”

Walker: “Are you saying the state should?”

And this one:

“What testimony in this case supports the proposition?” Walker asked.

“You don’t have to have evidence of this,” Cooper said.

This gives some insight into the world that the anti-gay folks inhabit. The usual expression is “I don’t know what you’re smoking, but where can I get some?”, except that I like my drug trips to be better than reality.

Apparently, on planet Conservo 8, homosexuality is so appealing that if it isn’t forbidden, restricted, and blocked at every turn, everyone will instantly turn gay, stop having children, and the human race will die out. Entire continents will be devastated by the Fabulous Blight.

The only reason people get married, there, is to have sex and children. Love has nothing to do with it, nor are people allowed to decide for themselves why they should get married. Couples who fall out of love after they’ve had children are not allowed to get divorced (unless they’re straight, I’m guessing), and adoption is evil (since the child doesn’t grow up with its biological parents).

But I do have to give the anti-gay side some credit. For a long time I thought the only arguments against gay marriage, or gay rights in general, were religious, and should therefore not be used as the basis for legislation under a secular government. Turns out I was wrong: as the above shows, there are also secular arguments.

The remaining question is, are there any arguments against gay marriage that are neither religious, nor pants-on-head retarded?

Update, Thu Jun 17 11:10:03 2010: The best argument I’ve seen in the reporting about the closing arguments is that Prop 8 honors “the will of the people”. This does carry a certain weight: in a democracy, we the people get a say in the laws that govern us.

Of course, just because something is popular doesn’t mean that it’s right: slavery, denying women the right to vote, Prohibition, and segregation used to reflect the will of the people as well, but I think we’ve grown up since then.


If anyone hasn’t gotten their fill of Prop 8 trial coverage, here’s a bundle of links:

First of all,’s day-by-day coverage of the trial. Mercury being, like, an actual news outlet with presuambly journalistic standards, I figured it’d be best to lead off with them. (Free registration required. Or bugmenot. Or, as it turns out, just leaving JavaScript disabled bypasses their compulsory registration system. Huh.)

The Alliance Defense Fund, who support marriage by refusing it to people who want to get married, have their own roundup.

It’s pretty dry, and generally makes a game attempt at hiding the WTF, mostly by being short on details. But the façade isn’t perfect, e.g.:

Professor Chauncey also had a frustrating habit of falsely linking the motivations of those who supported Proposition 8 to those who supported racial segregation a half century ago. He reluctantly agreed that there is nothing wrong with voters considering their individual moral values to decide how to vote on an issue, but then added that people supported racial segregation because of their moral beliefs. People also use their personal moral values to support environmental legislation or health care legislation. Does that mean those voters are just like those who supported racial segregation?

If you’re one of those weirdos who like facts (ugh! Ptooey!) in their arguments, you might be interested in the American Foundation for Equal Rights’s official trial transcripts.

But my favorite is Autostraddle’s Judgment Daze series. Yes, Rachel and Riese are as biased as the ADF (though in the other direction), but Rachel writes like a gay Wonkette, which counts for a lot, and includes links and videos and tasteful pictures of hot women kissing.

Naturally, both sides think they’ve won, and we won’t know which side really really won until the judge rules in, I think, late February. But I’m feeling cautiously optimistic. As in Kitzmiller v. Dover, the defense witnesses don’t seem to be all that familiar with the value of consistency or critical thinking, things that, I gather, count for a lot in a courtroom, especially when there’s no jury to be swayed by emotional appeals.

I also understand that the prosecution wants to show that Prop 8 was motivated primarily by anti-gay animus, and that a bigoted majority can’t just take away the rights of a minority. Sounds like they did a fine job with the examination of Hak-Shing Tam, who basically regurgitated every homophobic stereotype and urban legend you’ve ever heard, and whom the defense side nudged under the bus a bit.

Other arguments, like “marriage is all about raising children” were countered by, say, the observation that the Netherlands have had gay marriage since 2001 or so, and still does not resemble a Mad Maxian apocalyptic hellscape.

But just in case the judge decides that keeping definitions constant is more important than allowing people to pursue happiness, I think I have the perfect solution:

In the last day of testimony, David Blankenhorn said:

Even in instances of a man engaging in polygamous marriage, each marriage is separate. He — one man marries one woman. That’s the way it works.

The scholars then have pointed out that in certain societies, many societies, men of wealth and power then go on to marry additional women. They do not marry as a group. It is not a group marriage. It permits certain men that have access to power to marry more than one woman. Each marriage is a separate marriage of one man and one woman.

So let’s say a guy marries a woman. He then marries another woman, thus forming a family of three. They then divorce the guy, leaving two women married to each other, all fairly within the confines of the traditional definition of marriage.

It could even lead to a cottage industry of professional brides and grooms, who’ll marry any two people for a reasonable fee.