gay marriage debate: keeping the spark alive
On Wednesday lawyers in the Prop 8 trial will make their closing arguments. The judge has come up with 39 questions for them to address. Some of them bring up issues that we partisans haven’t turned to cud yet:
How does the Supreme Court’s holding in Michael H v. Gerald D […] square with an emphasis on the importance of a biological connection between parents and their children?
Michael H is a child custody case in which the Supreme Court denies a biological father visitation rights because there’s another guy on the birth certificate—the mother’s husband at the time she gave birth. Writing for the plurality, Scalia favors the marital relationship over the biological connection because, he says, that’s what American law has always done.
A pro-gay ruling could use Michael H to defeat two arguments: that America has some kind of grand tradition of privileging biology-defined families; and that kids are better off being raised by biological parents (even if the facts show that they are, the law as stated in Michael H supersedes them).
What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? […]
The constitutional consequences are clear: the state would be allowed to discriminate more against lesbians than against gay men. The question’s not academic. At trial the anti-gay side’s only credible argument was that it is a woman’s prerogative to change her mind. Some of their evidence on this point even came from non-religious sources.
If the court finds that lesbianism is whimsical, there are ways to argue we should have marriage rights anyway. For example, all women deserve the same level of protection as gay men, because we are all immutably bisexual. But I hope no one bothers. It’s about time the federal courts recognize that fags and dykes have nothing in common.
