Day: January 29, 2013

From the briefs filed in the impending Supreme Court case in California's Prop 8:

Paul D. Clement, a solicitor general under President George W.
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Bush and now representing House Republicans, argued that marriage should be only for men and women because only straight couples can 'produce unplanned and unintended offspring."

By contrast, if gay people want to have a child, "substantial advance planning is required."

So planned children are – bad? And unexpected, possibly unwanted children are – good?

And that’s a sound legal argument against gay marriage?

According to Clement, yes, because "unintended children" born and raised out of wedlock "would pose a burden on society." As of 2010, about 40% of U.S. children are born out of wedlock, 10 times the number of 50 and 60 years ago. No one calls them "illegitimate" or "bastards" any longer, and their birth does not send their parents racing to the altar in order to shield the child from now-nonexistent shame – and to save "society" from the burden of supporting them.

I'm going to pause while you re-read that until you can figure out what in the hell they're even arguing. If at first glance it makes no sense whatsoever, do not adjust the contrast. You're perceiving things correctly.

You're used to me taking potshots at right-wingers for lacking ideas other than "Cut taxes" and "Fire cruise missiles at it." This, however, is not an example of people who are out of ideas. These are people who have a vast number of ideas, and all of them blow. These are people scrambling for something to plug the leak while their boat sinks. If it isn't time for full blown panic, it's close to it.

Recently I've noticed a trend – hearing people talk about these issues regularly over time gives me an interesting perspective on how the goalposts and talking points shift – toward perhaps the last plank of the anti-gay marriage platform that could reasonably be called a legal argument: the idea that gay marriage presents some demonstrable harm to society, and government can regulate such things in the public interest. It's really not hard to make conservatives turn purple when they toss this line at you; "So the government should ban things that could be argued to harm society. Like giant sodas? Guns? Violent movies? I thought you guys were against the nanny state."

Unless they're willing to take the football and run with it on that point, proudly championing the idea that government exists to criminalize that which might cause harm, they're really out of ammo in this fight. That's not to say that the Supreme Court will rule against them – Scalia, Thomas, and Kennedy have a history of basically writing editorials as opinions on this issue, and who knows what Appeals to Tradition they will cite this time. But that's pretty much all they have left. Religious arguments. Moral arguments. Appeals to tradition and public opinion (which is quickly realigning against them on this issue). As far as their ability to build an actual case against legalizing gay marriage, this is shaping up to be a spectacle of mediocrity.

They might be out of gas, finally.

I have always considered and continue to consider gay marriage a Full Faith and Credit Clause issue; if one state issues a civil license, the Constitution plainly states that it is the obligation of other states to honor it. Your Vermont drivers' license is valid in Oklahoma, and so is your New York marriage license. The legal principle at work there changes not one bit when a state redefines marriage. Every state, for example, has different rules about the age at which people can marry without parental consent. Marriage is something people made up that governments see an interest in making an enforceable, legally binding contract. Its definition has changed and will continue to change. That we even have to waste time debating this is indicative of how thoroughly convinced religious conservatives are that their beliefs and the law are one and the same.