Is the Supreme Court Argument Over Gay Marriage Really All About Straight People?

By Nan D. Hunter
February 7, 2013

It’s Game On in the culture war. Those defending California’s Proposition 8 and the Defense of Marriage Act (DOMA) have filed the initial set of Supreme Court briefs in the cases that will be argued in late March.  Reading these briefs leads you to a surprising conclusion: the gay marriage debate is really all about heterosexuals.

The briefs argue that the single most compelling reason either to prohibit same-sex marriage (Prop 8) or to forbid any federal agency from recognizing a same-sex marriage that is valid under a state’s law (DOMA) is to bribe heterosexuals who engage in “accidental procreation” to get married. That’s right – you might think you remember that Congress’s debate over DOMA in 1996 and the Prop 8 campaign in 2008 focused on vilifying gay people, but you’d be wrong.

Actually, you’re right. The Prop 8 campaign relied heavily on ads suggesting that same-sex marriage made it more likely that homosexuality, like an insidious communicable disease, could infect innocent children. DOMA had an additional and openly partisan twist: it was introduced and enacted in the summer of 1996 as a Republican tactic to force every incumbent Democrat to condemn or endorse gay marriage, the latter amounting to political suicide for all but those in the most liberal districts. Even more delicious to the GOP, the legislation forced President Clinton to antagonize either his gay supporters or what was then the overwhelming majority of Americans who opposed same-sex marriage, just before the election. Enter the last big wedge issue of the twentieth century and a win-win for conservative Republicans. That’s who we have to thank for DOMA and why it was enacted.

The hope and gamble of those now defending Prop 8 and DOMA in the courts is that they can reframe this history into one of policymaking grounded in rational economic choices. In this version, denying same-sex couples the option to marry is actually a backhanded shout-out to the gays: because same-sex couples are so deliberative and dedicated when they decide to become parents (after all, they have to be), they don’t need the enticements associated with marriage as incentives to follow through on commitments to their children. Reserving the status of marriage for different-sex couples, on the other hand, simply limits the incentives to those who procreate unthinkingly (read straight men) and who can’t be trusted to make the same commitments. Their argument as an equation: “Natural” gender roles + Biblical command to procreate = Marriage.

The funny thing is that there’s grain of truth in this.  Not in the assertion that these laws grew out of neutral, well-intentioned responses to the needs of children or that what women need most is a reliable state of dependency on the father of their children rather than economic self-sufficiency. No, the grain of truth is that the material benefits and the cultural aura of respectability associated with marriage do encourage people to marry and reward them if they do. The conservatives’ big problem is not that some gays want to marry but that this effect seems to be working less and less on heterosexuals, who increasingly delay getting married or don’t get married at all. But does preventing gay people from marrying mean that straight people will be more attracted to the institution? It is silly to imagine that it would, and mean spirited to foreclose gay couples and their children from access to the social insurance programs that all our taxes support.

In the end, the main argument of those defending Prop 8 and DOMA boils down to a real headscratcher: the institution of marriage mixes economic advantage and cultural privilege with social control and discipline (as it should), so maybe if we talk enough about how heterosexuals will misbehave without the latter, the Supreme Court will let us keep the former to ourselves.

The other news in these briefs can be found between the lines: Fractures in the conservative political landscape—the world inhabited by gay marriage opponents—now permeate the legal claims.

Begin with the fact that neither of these two laws is being defended by the official legal officers of the respective jurisdictions that enacted them. California’s governor and attorney general abandoned defense of Prop 8 three years ago, and the Justice Department followed suit with regard to DOMA in 2011. And neither President Obama nor Governor Jerry Brown is worried about paying a political price for doing so. As a result, there are serious legal questions about whether the groups defending these laws even have standing to do so. You or I cannot force a court to decide the constitutionality of every law that we believe is wrong; plaintiffs have to demonstrate that they suffer an identifiable impact, not just that they disagree with it. Standing is the complex and technical area of law that establishes rules limiting who can file constitutional challenges to those who are burdened in material or institutional ways by the laws in question.

In the marriage cases, the typical standing question is flipped, because the issue is not who can challenge the laws but who can defend them. The group that organized support for Prop 8 – the Proponents – argues that it should have standing because otherwise, a duly enacted state constitutional amendment will be declared dead, in effect, for lack of lawyers. The counter-argument is that there will be no meaningful impact on the Proponents if Prop 8 dies, because they have no responsibility to enforce or not enforce the state’s marriage law. The standing arguments resonate with those about Prop 8’s constitutionality: if gay marriage doesn’t cause any harm, there is no harm in not defending it.

The standing arguments in the DOMA case are somewhat different, involving the propriety of the Justice Department’s decision not to defend it and the authority of lawyers hired by the House of Representatives to step in and fulfill that function. In both cases, however, there is the possibility that the Court’s decision will address only the standing questions and not reach the merits (i.e., the question of whether the law satisfies the Equal Protection Clause). If that happens, the lower court decisions will become the final rulings. The lower courts have found the two laws unconstitutional, meaning that those decisions would stand, though not as nationwide precedents. Same-sex couples would regain the right to marry in California, but the final outcome regarding DOMA is less clear.

There is another political fracture reflected more subtly in the briefing. The lead lawyers for the parties on the anti-gay side – Charles Cooper for the Prop 8 Proponents and Paul Clement for the House of Representatives – are two of the most skilled and highly regarded appellate attorneys in the country. Their briefs may or may not be persuasive, but they do not lack polish. They sound like what they are: the work product of top-drawer (and top-dollar) law firms.

To see how marginalized the on-the-ground groups trying to block gay marriage have become, you have to peruse the amicus briefs filed by organizations and individuals supporting Cooper and Clement. There are no bar associations, no professional associations, no national civil rights groups, no corporate business voices, and no big prestigious firms that have written the briefs. Some amici are formidable: the U.S. Conference of Catholic Bishops and the Attorneys General of 17 states, for example. But most of the intellectual, professional and cultural elites have switched sides.

In the end, of course, it will boil down to the nine Justices and, as the world knows, most likely the contest will be decided by just one: Anthony Kennedy, an enigmatic, 76-year-old Republican from Sacramento. Justice Kennedy wrote both of the Court’s most important decisions in the field of gay rights: Romer v. Evans, striking down a Colorado state constitutional amendment that blocked enactment of civil rights protections for lesbians and gay men, and Lawrence v. Texas, which declared all sodomy laws invalid. It’s a pretty good bet that he will get the last word on marriage too.

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Nan D. Hunter is Professor and Associate Dean at Georgetown Law Center and Legal Scholarship Director at The Williams Institute.