The Right Backs Affirmative Action!

Gay Marriage Becomes Legal In California

It’s a surprising move, but perhaps the only possible shred of an argument they have left in the fight to deny marriage equality to gay citizens. In Utah, the state has tried to muster legal arguments as to why they have an interest in marginalizing gay unions as opposed to heterosexual ones. Their first try was to argue that heterosexual-only marriage was important for “responsible procreation.” The Judge agreed, but couldn’t understand why allowing civil marriage for gays would somehow undermine that. In fact, he made the socially conservative counter-point that by mandating that gay couples remain unmarried, “the state reinforces a norm that sexual activity may take place outside of marriage.”

So they came up with a second argument: that by asserting the importance of heterosexual-only marriage, the state was making it more likely that children would be born into stable, two-parent homes, where they would fare better. The judge was puzzled again:

Utah’s ban, he wrote, “does not make it any more likely that children will be raised by opposite-sex couples.” But it certainly demeans and humiliates the thousands of children being raised by same-sex couples in the state, he said.

So Utah tried another tack in appealing to the state Supreme Court (and no, I’m not making this up). They said that having a woman and a man in a marriage was important for … wait for it … diversity. Money quote:

“The state does not contend that the individual parents in same-sex couples are somehow ‘inferior’ as parents to the individual parents who are involved in married, mother-father parenting,” the state said.

But, drawing on Supreme Court decisions endorsing the value of diversity in deciding who may attend public universities, the state now said it was pursuing “gender diversity” in marriages. “Society has long recognized that diversity in education brings a host of benefits to students,” the brief said. “If that is true in education, why not in parenting?”

“Gender diversity” is an argument I haven’t yet heard in the two and a half decades I’ve been debating this question. I have heard that in Catholic teaching, a mother and a father are vital complements to each other because of their differing genders.

But that’s an argument from natural law, and doesn’t actually hold up in the many studies of how well children do in same-sex and opposite-sex households. The idea of diversity like a university is somewhat different. But it begs a further question. If gender diversity is important, why not religious diversity? Or racial diversity? If the state has an interest in providing “diversity” in parenting, should it not privilege inter-racial marriage or religiously mixed ones? That’s an interesting argument in social engineering, but not one, I suspect, that can hold much water in front of a court.

When I first read it, it actually made me laugh out loud it seemed so transparently desperate as an argument. And that’s the core thing about this debate. As it has gone on, the logic of equality has proven far stronger than the logic of exclusion. In the courts, often denigrated, the standard of logic applies more rigorously than in the emotional and human maelstrom of democratic votes. If the arguments just don’t stand up to reasonable inspection – and they sure haven’t – what is even a conservative court supposed to do? And if Utah‘s supreme court cannot provide a convincing case to retain this kind of public discrimination, what hope the others?

This began as a strange outlier. Maybe, as the court deliberates over the next couple of months, it will end up in a much more radical place.

(Photo: Same-sex couple Ariel Owens (R) and his spouse Joseph Barham walk arm in arm after they were married at San Francisco City Hall June 17, 2008 in San Francisco, California. By Justin Sullivan/Getty Images)