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Feb 01 2013

FRC Contradicts Itself in Marriage Cases

Right Wing Watch catches something important in the briefs filed by the Family Research Council in the two marriage equality cases being heard soon by the Supreme Court. In Hollingsworth v. Perry, the Prop 8 case from California, they argue this:

In sharp contrast to the “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” Lawrence, 539 U.S. at 572, which, in turn, was based upon an examination of “our laws and traditions in the past half century, id. at 571, “[t]he history and tradition of the last fifty years have not shown the definition of marriage to include a union of two people regardless of their sex.” If anything, the fact that thirty States have amended their constitutions to reserve marriage to opposite-sex couples strongly suggests that there is no “emerging awareness” that the right to marry extends to same-sex couples.

But in U.S. v Windsor, the DOMA case, they argue this:

Any lingering doubt that gays and lesbians are able to influence public policy, particularly with respect to the issue of same-sex marriage, should have been laid to rest by the results of the last election. Three States – Maine, Maryland and Washington, by popular vote, approved laws allowing same-sex marriage, and in a fourth State – Minnesota – voters rejected an amendment to the state constitution that would have prohibited same-sex marriage. Even in States where such amendments have been approved, the margin of victory has often been narrow, in some cases barely passing (as in California in 2008 and South Dakota in 2006), indicating that homosexuals, who comprise no more than one to two percent of the population, have succeeded in enlisting many heterosexuals to support their cause for same-sex marriage. In such a dynamic social and cultural environment, the belief that homosexuals are “politically powerless in the sense that they have no ability to attract the attention of the lawmakers,” strains credulity.

So when it suits their purposes in one case, all that matters is that 30 states have banned same-sex marriage (all prior to 2010). And when it suits their purposes in another case, all that matters is that the four states that had same-sex marriage on the ballot in 2012 all went in favor of equality. Heads they win, tails you lose.

9 comments

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  1. 1
    eric

    Question to the lawyers: is a judge likely to care about this inconsistency across different cases? Or is it likely to be ignored, chalked up to standard legal practice?

  2. 2
    markr1957

    FRC practicing biblical honesty again, I see. Just don’t contradict yourself until at least one verse later.

    On the other note where are these enlisting homosexuals going round? I haven’t met one of them so nobody can claim I was enlisted to support marital equality – for me the deciding factor is EQUALITY. For the nation that brought the modern world the concept that all people are equal there sure is a lot of effort going into making sure some people are more equal than others.

  3. 3
    greenspine

    This speaks to something I’ve been wondering for a long time. Among my circle of friends, there’s an attitude that the march of history is clearly in the direction of more social equality for all classes and groups of people, more secularism, more freedom. Conservative elements have their heels dug in and are trying to stop progress, but they can only hold it back, poorly, and it seems like they never regain ground lost.

    I’m speaking mostly about the moral positions of the people who make up the society, rather than laws and regulations – we may have regressive legislatures passing socially-conservative agendas, but it is often against the wishes of the people they represent, and it feels like the culture is in a constant shift away from bigoted attitudes.

    Do other people feel this way, that the pendulum has swung (thanks to the sacrifices and courage of progressive front-liners) and there is now a huge amount of momentum to the changes we see in society?

  4. 4
    drr1

    eric wrote:

    Question to the lawyers: is a judge likely to care about this inconsistency across different cases? Or is it likely to be ignored, chalked up to standard legal practice?

    The argument in the Hollingsworth Prop 8 case is grounded in substantive due process (fundamental rights) doctrine. When trying to decide if a particular liberty interest is also a fundamental right, courts do ask whether historically and traditionally, the liberty interest is one that has received special protection under the law. Needless to say, this isn’t a clear standard. We can argue over an awful lot of things here, so the standard is nowhere near as objective as its proponents would suggest.

    The argument in Windsor is an equal protection argument. Specifically, the issue is whether sexual orientation should be a quasi-suspect class. One factor courts consider is whether the class is able adequately to protect its interests via the political process. If the answer is no, then it makes some sense that perhaps the class needs the protection of elevated judicial scrutiny.

    All of this is a long-winded way of saying that judges and Justices will not likely be offended by the apparent inconsistency between these positions. I could see a question being raised at oral argument, or perhaps something finding its way into an opinion, but as the explanation above reveals, the inconsistency can be explained away on theoretical grounds. That said, I also believe that some of the Justices (e.g., Kennedy, Ginsberg, Breyer, Sotomayor, Kagan) will take note of the impossible position gay rights advocates find themselves in: if history and tradition is on your side, you don’t need judicial protection; if you do need judicial protection, history and tradition is against you. Or, as Ed put it – heads we win, tails you lose.

  5. 5
    naturalcynic

    It’s just lawyers doing their job. They [ethically??] argue in the best interest of their clients. so, whatever works is OK.

  6. 6
    jameshanley

    @Greenspine,

    I’d hesitate to say the march of history is toward more liberty–in many cases we gain one liberty here, but lose another over there.

    But as for a march toward equality for different groups, I think so, and I have a hypothesis about why, which can be represented by Jefferson’s “all men are created equal” claim, although ultimately it derives out of the English liberal philosophers of the enlightenment era.

    Those concepts broke down the idea that society has a hierarchical structure ordained by God, so that obedience to God means accepting one’s place, however lowly. By treating all men as rational intelligent beings who come together to form a social contract equals, the liberal philosophers undermined the traditional idea that some elements of society were inherently superior.

    Of course originally this conception of politically equal rational intelligent persons was effectively limited to white men. But a genie was released, and with the idea of inherent superiority on the sane and natural equality on the rise, those on the outside could say, “And why not us? Isn’t our exclusion a contradiction of your theory?” And because it clearly was, the equality of those groups could not be denied with sufficient intellectual vigor and logic, despite the emotional desire to continue excluding them. So white men were forced to admit that non-white men, and women, all are equally deserving of political equality. And then each successive drawing of the line of exclusion is that much harder to defend, except where it’s clearly referent to a harm that results from an action (rapists, child molesters). Which is why opponents of SSM have mostly given up reliance on the claim of homosexuals’ inherent immorality–a claim of natural inferiority, through the idea of being a degraded version of heterosexuality–and are desperately trying to find some differential effect of homosexuality. But that attempt is failing, too, because they are unable to demonstrate anything that actually smacks of harm.

    It’s an awesome example of the power of an idea.

  7. 7
    freemage

    Greenspine: Crommunist recently had a post about that very subject; I found it quite intriguing. He notes that there are historical examples of backsliding, and other arenas where there simply is no momentum at all.

  8. 8
    d.c.wilson

    The history of this country will be written as a constant struggle between the liberals, who try to push the circle of equality out to include more people and the conservatives who keep saying, “that’s far enough. Everyone who deserves equality has it now.” Every time a barrier to full participation falls, the liberals win. When the circle contracts, the conservatives win.

    Santorums’s BFF, Foster Fries, recently made a ridiculous statement (no, not the one about aspirin). He claimed that conservatives actually won in 2012 because we shouldn’t count people who live in what he called “central cities”.

    Right now, it feels like we’re on the verge to extending the circle out to infinity. But if people like Fries get their way, the circle could shrink to its smallest radius since before the Enlightenment. Don’t think that his ilk don’t have the resources to pull it off, either.

  9. 9
    greenspine

    Thanks for the comments, and the link to Crommunist’s article… it’s exactly what I wanted.

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