Pilon on Marriage Equality and Abortion


Roger Pilon, the vice president of legal affairs for the Cato Institute, has a column at the Huffington Post responding to an editorial in the Wall Street Journal urging the Supreme Court to reject marriage equality. The WSJ argued that if the Supreme Court mandates marriage equality, it would have the same discordant result as Roe v Wade and create the same cultural turmoil:

The Supreme Court does not have a good record legislating cultural change. A ruling on behalf of same-sex marriage could enshrine Hollingsworth and Windsor with Roe v. Wade, the 1973 abortion decision that imposed a judicial diktat even as laws in many states were liberalizing.

But Pilon points out that there is a much more obvious judicial parallel:

In fact, if politics is the issue, a far better analogy with the present cases is the Court’s 1967 decision in Loving v. Virginia, which found Virginia’s anti-miscegenation law, and those of 15 other states, unconstitutional under the Equal Protection Clause of the 14th Amendment. There, too, we had a controversial decision, handed down at the height of our civil-rights strife. But it did not lead to the unending controversy that has followed Roe, even though it was the Court, not state legislatures, that finally brought an end to laws banning inter-racial marriage.

One reason that Loving did not play out as has Roe is because the nation was more clearly moving in the direction of accepting interracial marriage than abortion, much as today we see a similar movement regarding same-sex marriage. Ironically, in invoking political considerations by way of urging “judicial restraint,” the Journal is asking the Court to consider matters that are not, strictly speaking, the proper business of the courts.

The parallels between the battle over same-sex marriage is identical in every meaningful way to the battle over interracial marriage in the late 60s and the result, I have no doubt, will be identical as well. Regardless of whether same-sex marriage is mandated by the legislative or judicial branch, we will look back on the current controversy in short order — 20 years, 30 at the most — and wonder what on earth all the fuss was about.

The WSJ also made this argument:

The Court ought to conclude on the merits that marriage as historically understood does have a “rational basis.” This version of the equal protection test properly defers to the deliberative judgment of voters and their elected representatives. Traditional marriage laws may support legitimate goals like promoting intact, reasonably stable wedlock between mothers and fathers for children, or simply stem from a desire to not experiment with a core unit of civil society.

And Pilon replies:

The question, however, if equal protection analysis is done properly, is not whether marriage has a rational basis but whether government discrimination against some of those who want to marry has a rational basis. Once the presumption is properly reversed and the matter properly put, the question then becomes, what is a “rational basis” for the government’s so discriminating? Unfortunately, under the Court’s modern equal protection jurisprudence, unless a plaintiff is seen as a member of a “protected class,” any “conceivable reason” will do — like those just mentioned, purporting to support traditional marriage (and exclude same-sex marriage). Regrettably, the history of such “rational basis” review — of judicial deference “to the deliberative judgment of voters and their elected representatives” — is one of majoritarian and, more realistically, special-interest tyranny, conjoined with ever diminishing liberty in countless areas of life.

There’s also a directly related question, which is that even if the importance of marriage to society is a rational thing for the government to attempt to support (and most would agree that it is), how does forbidding gay people to marry advance that goal at all? That is always the missing part of the anti-equality argument, which in essence is simply “marriage is good so therefore we must forbid gay people from marrying” — with no coherent or logical argument whatsoever connecting the premise with the conclusion.

Comments

  1. criticaldragon1177 says

    Ed Brayton

    This is a great editorial. People who think that the court should reject marriage equality on the grounds that it will get a lot of people angry, should remember how enraged people where when the supreme court finally got around to making the right decision when it came to racial segregation, and through all those laws out.

  2. says

    “… how does forbidding gay people to marry advance that goal at all?”

    Because Jesus, that’s how.
    If we make his daddy really, really super mad he will kill a LOT of heterosexual couples. Think Katrina; Mobile, Ala.; multistate ass-tearing super cells that hit the Midwest almost on an annual basis.
    Apparently, from a long distance, it’s nearly impossible to aim for Denmark or Sweden without hitting a state in the Bible Belt.

  3. raven says

    Well so what?

    Ending slavery nearly destroyed the USA.

    We had a civil war that killed a huge number of people and destroyed much of the south. And they’ve never gotten over it either.

  4. says

    “That is always the missing part of the anti-equality argument, which in essence is simply ‘marriage is good so therefore we must forbid gay people from marrying’ — with no coherent or logical argument whatsoever connecting the premise with the conclusion.”

    Gays ruin marriage. Their ceremonies are always so much better than ours.

  5. says

    Tonight’s edition of Roger Pilon’s “How many words can I use just to say buttsecks is icky” is brought to you by the Church of Jesus Christ of Latter Day Saints.
    Remember: Go Mormon; at least they’re not as fucking nuts as those Scientologists.”

  6. cptdoom says

    Traditional marriage laws may support legitimate goals like promoting intact, reasonably stable wedlock between mothers and fathers for children, or simply stem from a desire to not experiment with a core unit of civil society.

    Well, that train left the station quite a while ago. If marriage laws are meant to promote “intact, reasonably stable wedlock between mothers and fathers,” we would not allow no-fault divorce, or much divorce at all. We would not allow remarriage after divorce and would either require marriage for couples who conceived out of wedlock, or restrict the rights of such individuals to marry in the future. Instead, marriage laws have evolved to allow straight couples to form and break-up marriages over and over again, with absolutely no limitations even when there are children involved.

    As for the desire not to experiment with “a core unit of civil society,” when exactly did that become a concern? When the law recognized “eternal marriage” as conceived by Mormons (when marriage had always been ’til death you do part until then)? When women were given property rights within marriage? When divorce stopped making people into social pariahs? When women achieved full equality within the institution?

    And it is quite frankly inconceviable to me that we would see a Roe-like response to marriage equality nationwide. Unlike abortion, marriage is an uplifting, positive change, and even those who work against equality realize that. Protesting outside of women’s clinics is one thing, but protesting outside of someone’s wedding? Even Westboro doesn’t do that.

    I can easily believe the religious right will continue to highlight those poor persecuted “Christian” small business owners who are forced to serve gay and lesbian couples, and they may generate some sympathy for them. However, I can’t think of any other action they could take that would not generate more controversy than sympathy. Civil servants who won’t issue marriage licenses or refuse to recognize legal marriages are going to be seen as not doing their jobs and religious hospitals that refuse visitation rights would be seen as cruel and callous. In fact, that has been the attitude already when similar incidents have occurred. In fact, I would argue the very lack of significant protest in jurisdiction after jurisdiction once marriage becomes equal belies any concern we are heading for a repeat of the antii-abortion movement.

  7. laurentweppe says

    The WSJ argued that if the Supreme Court mandates marriage equality, it would have the same discordant result as Roe v Wade and create the same cultural turmoil:

    Except that Roe did not create a cultural turmoil: it was merely used later as a smokescreen to hide the religious right’s racists skeletons:

    I’ll never tire of quoting this:

    In November 1990 […] in a conference room with a couple of dozen people, including Ralph Reed, then head of the Christian Coalition; Carl F.H. Henry, an evangelical theologian; Tom Minnery of Focus on the Family; Donald Wildmon, head of the American Family Association; Richard Land of the Southern Baptist Convention; and Edward G. Dobson, pastor of an evangelical church in Grand Rapids, Michigan, and formerly one of Jerry Falwell’s acolytes at Moral Majority. Paul M. Weyrich, a longtime conservative activist, head of what is now called the Free Congress Foundation, and one of the architects of the Religious Right in the late 1970s, was also there […] Weyrich tried to make a point to his Religious Right brethren […] that the Religious Right did not come together in response to the Roe decision. No, Weyrich insisted, what got us going as a political movement was the attempt on the part of the Internal Revenue Service (IRS) to rescind the tax-exempt status of Bob Jones University because of its racially discriminatory policies […] The IRS attempt to deny tax-exempt status to segregated private schools, then, represented an assault on the evangelical subculture, something that raised an alarm among many evangelical leaders, who mobilized against it.

    This is important as it should reminds us that the religious right (not merely the american version: the european bigots are better at pretending to be staunch secularists, but they are identical behind their mummers play) never gave a shit about “the unborn”: it should therefore be an incentive to take their claims of “defending families” as the same kind of insincere bullshit.

  8. Loqi says

    @Katherine Lorraine
    I concur. I also now look silly for chuckling in a room full of people who wouldn’t get it.

  9. Matt G says

    Is teenage pregnancy a good thing? Perhaps the courts have a rational basis for removing children from young mothers….

  10. laurentweppe says

    Perhaps the courts have a rational basis for removing children from young mothers….

    Or maybe to remove teenage mothers from the families and/or schools who taught them the abstinence only bullshit.

  11. says

    “it would have the same discordant result as Roe v Wade and create the same cultural turmoil:”

    I was unaware that KKKristians who are butthurt about icky buttseks (guys only, teh wimmin-on-wimmin stuff is fun to watch!) were the sole constituency that is deserving of not having their feelings hurt. In any case, fuck ‘em.

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