Now We Wait for the Ruling
If you’d like a quick primer on what the Supreme Court will
be deciding in the next few months, this New York Times chart
on how the justices could rule on Prop 8 and DOMA is clear and helpful.
Over at First Things, Glenn Stanton comments
on some good questions the Justices asked. I tracked down one of the quotes he
cited from Justice Sotomayor to get more of the context:
SOTOMAYOR: Mr. Olson,
the bottom line that you're being asked—and it is one that I'm interested in
the answer: If you say that marriage is a fundamental right, what state
restrictions could ever exist? Meaning, what state restrictions with respect to
the number of people…the incest laws, the mother and child…I can accept that
the state has probably an overbearing interest on protecting a child until
they're of age to marry, but what's left?
OLSON: Well, you've
said in the cases decided by this court that the polygamy issue, multiple
marriages, raises questions about exploitation, abuse, patriarchy, issues with
respect to taxes, inheritance, child custody, it is an entirely different thing.
And if you—if a state prohibits polygamy, it's prohibiting conduct. If it
prohibits gay and lesbian citizens from getting married, it is prohibiting
their exercise of a right based upon their status.
The first mistake Olson makes here is that he thinks people
are being denied marriage because of their sexual orientation (i.e., “their
status”). This has never happened. There is no test whatsoever for sexual
orientation when a person applies for a marriage license. There is no class of
people being told they’re not eligible for marriage. In fact, the exclusion of
same-sex couples (that’s same-sex couples, not homosexual citizens) from
marriage isn’t about prohibiting something on the basis of bad conduct or the status of a group, it’s about the
definition of marriage.
As Justice Roberts pointed
out:
When the institution of marriage
developed historically, people didn’t get around and say let’s have this
institution, but let’s keep out homosexuals. The institution developed to serve
purposes that, by their nature, didn’t include homosexual couples.
If marriage is a particular thing, then everyone has a right
to take part in that institution as it stands, regardless of their personal
characteristics. But to be part of the institution, they must be part of the institution. They don’t have a right to change
that institution into something different simply because they don’t want to be
part of it the way it is.
Imagine a public park builds a tennis court so that people
can come to play tennis. Nobody should be denied the right to play tennis games
there. Period. It’s a public park, open to all. One day, a group of basketball
players comes to the park, wanting to play a game, but they find they can’t
play basketball on a tennis court. They immediately go to City Hall to
complain: “Everyone has the right to competitive exercise with a ball on that
court! We’re being denied our rights based on our status as basketball players!”
Can you see the problem? The fact that they don’t want to play tennis doesn’t
give them the right to demand that
the government build a different court at the park. Their right isn’t to “competitive
exercise with a ball” (tennis shares that in common with basketball, but it
can’t be reduced to that), their
right is to play tennis on that court, just like everybody else.
Please don’t take that illustration farther than it’s
intended to go. I’m merely trying to show that rights aren’t being denied
simply because a person (or group of people) doesn’t want to take part in
something. The park promises the same thing to all. It doesn’t promise
“competitive exercise with a ball,” it promises tennis. And tennis excludes
basketball—not out of prejudice, but by nature. One could certainly argue over
whether the park ought to change that court into something different, but as things stand, no rights are being
violated. Neither justice nor equality demands
that the park change its court to accommodate the desires of the basketball
players to play a different game in that space. The same is true
for marriage.
Secondly, even if it were legitimate for Olson to make the
argument that homosexuals are being denied the right to marry “based upon their
status,” I don’t see why one couldn’t equally say that polygamists are being
denied their rights based upon their
status as people who prefer to have many marriages. Isn’t that class of
people being denied their right to define marriage for themselves, if Olson’s
way of looking at this is correct?
Another problem: Olson says polygamy is an “entirely
different thing” from same-sex marriage because it “raises questions” about
legal, social, and moral harms, and that’s what prevents it from being a right.
But in making this distinction, he’s merely assuming what he needs to prove. Those
defending traditional marriage also have arguments
explaining the harm that will be caused by removing the core principle of sexual
complementarity from the definition of marriage (including the legal difficulties
resulting from surrogacy, sperm and egg donors, etc.—difficulties that will inevitably result because a third
person outside the family must always be involved in the creation of a child
for same-sex parents).
If Olson is correct that the harm that would result to
society from changing the definition of marriage is grounds for not changing the definition to
accommodate a particular group’s desires, then same-sex marriage can be
disallowed if it causes harm.
But if Olson is correct that same-sex marriage is not merely
a desire, but actually a right that can’t
be disallowed, even if it raises questions of harm, then Sotomayor’s question
stands: If defining marriage for yourself is a fundamental right, what state
restrictions could ever exist?
Olson can’t have it both ways.
You can read more quotes from the proceedings in Stanton's article, “Supreme Court
Finally Asks the Tough Questions on Same-Sex Marriage,” and on the Huffington Post.
