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Sunday, April 7, 2013

Evaluating Three Arguments Raised by Supporters of Prop. 8 and DOMA in Oral Arguments

This is the first in a series of articles that explore the Perry and Windsor gay marriage cases. This article focuses the proponents' basic arguments. Others will explore the issues with standing, the opponent's strongest points and the unique position of Justice Kennedy, who is likely the deciding vote and who is also the author of the two most important cases dealing with gay rights; Romer v. Evans and Laurence v. Texas.

1.  Marriage is primarily about procreation and same-sex couples cannot naturally have children.

In general, this is probably a losing argument.  First, marriage was historically as much about property rights as about children and the DOMA suit is about property rights.  Second, the elderly and infertile are allowed to marry.  Same-sex couples can at least conceive through artificial insemination.  This was a point made by Justice Kagan in oral arguments.  Given the right to birth control for married people in Griswold v. Connecticut and its reframing in Eisenstadt v. Baird, it is unlikely that the Court would find that the rights of marital sex are tied up in procreation.  After all, it’s hard to procreate with safe-sex and that is a right deemed fundamental in the aforementioned cases.  Given that non-procreative sex is protected to some degree and that same-sex couples can have children through insemination and adoption, this point seems to fall flat.

2. Defining marriage should be left to the states.

There is a historical and Tenth Amendment argument here.  In United States v. Morrison and Lopez v. United States, the court mentioned that domestic relations were normally reserved to the states, but conversely the Supreme Court has not held that the 10th amendment exclusively reserves something as broad as marriage regulation since the Great Depression.  Still Justices Scalia, Kennedy and Thomas signed onto Lopez and Morrison, so they might go with this line of thought.

The more recent favorable Tenth Amendment cases have had to do with state governments being forced to carry out federal programs, like in the case of New York v. United States (1992), where the federal government attempted to force states to take title to low-level nuclear waste.  A parallel could be drawn here, but it is weak since this is an exception to the general rule of full faith and credit and because the federal marriage definition pertains to federal programs.

3. There is harm to children raised by same sex couples.

This is a hard sell without more data, but that is not why this argument is a loser.  In Perry, the district judge made an express finding of fact that there was insufficient evidence of a negative effect from same-sex couples raising children.  This finding of fact should be binding on the Court unless it is clearly erroneous which will be very difficult to show.

Conclusion: These arguments are not very persuasive.  However they could, theoretically, be sufficient if the cases are scrutinized under a mere rationally standard.  The next article will look at possible standards of review and the likely opinions of the individual justices.