Bob Franken

Gay Wedding Dance

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The Supremes have a variety of options when it comes to marriage law. They can take seriously that “Equal Justice Under Law” greeting chiseled into the entrance of their magnificent building. In other words, they can declare any impediment to same-sex matrimony unconstitutional. Or a majority can decide that the law of the land tolerates intolerance. The other possibility is that they can wimp out and hide behind a procedural finding.
Speaking of wimping out, this is where I less-than-boldly point out that discerning the final outcome of a case or even what the justices are really thinking is pure speculation. But let’s speculate.
In both days of arguments, they seemed to be looking for a way out of making a sweeping decision either declaring laws against gay marriage constitutionally impermissible discrimination, a la the landmark civil-rights rulings, or somehow coming up with an unconscionable rationale that they are acceptable. The preference for a timid solution was evident time after time. Even the liberals were skittish. Sonia Sotomayor suggested “letting society have more time to figure out its direction.” It begs the question she and the others didn’t ask, which is why allowing one more day of bigotry could be legitimate public policy. Maybe they’ll have exactly that kind of discussion in closed conferences before they take their votes and unveil their handiwork, probably in June.
There is, however, a third approach that is not being considered. What about achieving equality by doing away with government-sanctioned marriage for everyone? That way, there is no discrimination. People can have nuptials if they want, but all of the benefits, legal and otherwise, that accrue to spouses would be eliminated. That’s fairer to single people anyway. In federal law, there are more than 1,100. The arguments for strictly heterosexual wedlock are obviously weak. Procreation? We certainly don’t need it for that. Stability for the kids? Antonin Scalia, who was relatively subdued during these hearings, spoke of the “considerable disagreement among sociologists as to what the consequences of raising a child in a same-sex family, whether that is harmful to the child or not.” Actually, an answer came from a fellow justice, Anthony Kennedy, Justice Swing Vote himself: “They want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”
No less prestigious an organization than the American Academy of Pediatrics thinks so. It came out with a position statement that gay marriage, like the traditional coupling, will “promote optimal health and well-being of all children.” Besides, we have a divorce rate over 40 percent, and that doesn’t account for the abusive families that stay together. They certainly would qualify as “harmful.”.

As clear-cut as the fundamental issue would seem to be, the two cases have some logistical complications that are just perfect for timid justices looking for a reason to dance on the head of a pin instead of taking bold action. In neither of them is the usual government entity defending the underlying law. California Democratic Gov. Jerry Brown decided he didn’t believe in Proposition 8, which blocked gay marriage in the state. So a private alliance is defending it. The same is true for the Defense of Marriage Act. Because he considered the law unconstitutional, President Barack Obama ordered the Justice Department out of its normal role advocating for it. That leaves room for a namby-pamby SCOTUS determination that some of the parties don’t have proper “standing,” so everyone go away.
Here’s who does have standing: About nine million Americans identify themselves as lesbian, gay, bisexual or transgender. If they can’t enjoy conjugal bliss, then maybe no one should. Maybe DOMA, the Defense of Marriage Act, should be replaced by GROMA, the Get Rid of Marriage Act. Yes, I’m being facetious, but no more ridiculous than those who argue against Equal Justice Under Law for everyone.

© 2013 Bob Franken
Distributed by King Features Syndicate, Inc.

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