Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said
The second part of the session focused on whether the Constitution requires states to recognize gay marriages validly entered into in other states, an issue the Court would get to only if it first upheld gay marriage bans as argued in the earlier part of the session. This new issue was harder for the respondents to win since states almost always recognize marriages in other states, but here they argued that a strong public policy in favor of procreation protection (the same argument from the first part) not only justified banning gay marriages but keeping out foreign ones. There was a confusing discussion of Article 4 of the U.S. Constitution (which requires the states to give “full faith and credit . . . to the acts, records, and judicial proceedings of every other state”), but no one, neither the attorneys nor the members of the Court seemed to have much grasp of the history of the Article nor its judicial treatment in the courts (which amazed me, because I’ve explored the issue and was embarrassed that obvious arguments on both sides were missed). The petitioners made points by detailing the plight of some of the actual plaintiffs in this appeal. For example, a gay couple was married in California, one husband gave up his job to be the primary caregiver for their adopted children, and when the couple and their children had to move to Tennessee because the working spouse was transferred there, suddenly they were no longer married in the new state, and had major problems with who could make medical decisions for the children in emergency situations. To this the respondent’s attorney pointed out that if the Court decided states could constitutionally ban gay marriages, then making them recognize those from other states would, effectively, fill their state with gays married in those states, and the ban would be useless. He concluded by pointing out that states that have stuck with traditional marriage have not changed, have not done anything except keep the status quo, and are then being punished by being forced to agree with experiments in other states with which they do not approve.
But the chief thing is that not a single person—lawyers, judges, those who wrote the briefs, the journalists—has pointed out the real issue in this case. It’s a simple fact, demonstrated by the protester in the Court, that many people in this country hate gays. Their bible tells them that gays are an abomination and their guts tell them that what gays do in bed is repellant and should certainly not be enshrined in the United States Constitution as a right to be forced down the throats of God’s clean people. That issue needs to be front and center and addressed.