Quantcast

«

»

Feb 11 2014

Virginia Confronts Marriage Equality Again

A federal court heard oral arguments in the lawsuit challenging Virginia’s ban on same-sex marriage last week and Thomas Peyser was there to observe the proceedings. He makes several interesting observations, including the parallels with Loving v Virginia, the case that overturned Virginia’s ban on interracial marriage (and all others as well, of course).

At the Supreme Court in 1967, Virginia defended its law prohibiting whites from marrying outside their race, a law broken by the interracial couple Richard and Mildred Loving. To prove that racism had nothing to do with the ban at issue in Loving v. Virginia, the state proudly pointed out that white and non-white violators were punished just the same.

Similar examples of high-minded sophistry were heard in Norfolk on Tuesday, where the constitutionality of Virginia’s ban on same-sex marriage was debated in federal court…

For the pro-ban team, Loving was an impediment to be brushed aside. The hapless youth who spoke first said the precedent was irrelevant because, “obviously,” the Lovings were not gay. It was different for Boies and Olson. In a majestic peroration, Olson spoke of newly freed slaves’ rush to express their liberty along with their love by getting married. In the days before emancipation, as in the days before Loving, Virginia got things wrong. “It’s wrong now,” he said.

When the plaintiffs exited the courthouse, a protester informed them that there is nothing gay about homosexuals, citing relatively high suicide rates among members of this minority.

But such statistics are just another echo of Loving. In oral argument, Virginia defended anti-miscegenation laws by pointing to relatively high divorce rates among interracial couples. Justice Potter Stewart drily replied, “It could be argued that one reason that marriages of this kind are sometimes unsuccessful is the existence of the kind of laws that are in issue here and the attitudes the laws reflect.” The state likewise disparaged interracial marriages as worse than interfaith ones, provoking an incredulous Chief Justice Warren to ask, “How can you say that? Because … because you believe that?”

He also notes the disparity in the arguments being made inside the courthouse and the ones being made outside it:

Owing to the ground rules of that curious language game called the American justice system, everyone in court agreed to ignore the burning bush in the room: that the fervor for the ban stems from belief that God has pronounced gay sex a sin. But protesters in the street before the hearing were not so inhibited. One man hollered approvingly of God’s “burning Sodom to a crisp.”

This is a lot like what happens in church/state cases. Everyone knows what it’s really about. It’s about oppressing gays because God says they’re icky. But the attorneys can’t say that so they have to engage in sophistry, inventing absurd and illogical rationalizations and using euphemisms (“traditional values” and “pro-family”). Which is why their arguments are just so bad.

13 comments

Skip to comment form

  1. 1
    Gregory in Seattle

    It would be cool if Virginia had its name on TWO pro-marriage landmark cases. If anyone is interested in reading how hard the Supreme Court slapped down Virginia in 1968, you can read the decision here. It contains many varieties of awesome.

  2. 2
    kevinalexander

    Sooner or later I would like to see the argument move past ‘Because god says it’s icky.’ That’s just smoke. It’s people who think it’s icky. The clearest proof that god is imaginary is that he always conforms to the deepest emotional need of the believer who imagines him. The Pentecost wasn’t a miracle, you would expect any holy spirit to tell each person there exactly what he wanted to hear.
    Everyone hates ‘The Other.’ It’s part of our tribal nature. We hate people who are different and we hate other people having sex so the two get combined in hatred of gays.
    The civilizing project is about understanding human nature so that we can overcome the parts that are wrong.

  3. 3
    eric

    I am not sure why the plaintiffs are ‘ignoring the burning bush in the room.’ Seems to me a very credible argument to point out that the citizens of Virginia understand the ban to be about enforcing a religious norm. That argument would support the notion that any legislator’s “secular intent” in passing the restriction is nothing but a sham. Heck, I’m sure one could probably find tape of many of the state legislators supporting the ban in explicitly religious terms. No real secular intent => only a religious establisment intent => unconstitutonal.

    Maybe one of our legal lurkers can give an opinion on why they didn’t pursue this line of reasoning?

  4. 4
    =8)-DX

    ‘Because god says it’s icky.’ That’s just smoke. It’s people who think it’s icky.

    Actually, not really true in all cases. The “god” here is just a concept, an invisible friend, but one informed through dogma and that therefore informs opinions. Religious people really do consider “what does god think/command” when considering issues like this. I remember I did. In fact I remember feeling much more of the “gay is icky” when I associated it with “they’ll go to hell!” and “its against god’s law!”

    Getting rid of gods helped me get rid of those feelings and now I can easily distinguish between “I don’t want to have sex with a same-sex partner” (the only actual icky) and “look at those young people kissing in public – that;s so romantic! Squeeeee!”.

    What is really icky to them is “this goes against everything I’ve ever believed”, so removing the god part does make a significant difference.

  5. 5
    Modusoperandi

    I don’t see how marriage is going to help lower the suicide rate…*

     
    * I kid. I love marriage, seriously I do, but as Mae West said, “Marriage is a fine institution, but I’m not ready for an institution.”

  6. 6
    abb3w

    @1, Gregory in Seattle

    It would be cool if Virginia had its name on TWO pro-marriage landmark cases.

    To your impending disappointment, the case is apparently named Bostic v Rainey. To mine, this doesn’t have even an iota of the epic humor value of “Virginia versus Loving”.

  7. 7
    kevinalexander

    The “god” here is just a concept, an invisible friend, but one informed through dogma and that therefore informs opinions. Religious people really do consider “what does god think/command” when considering issues like this. I remember I did.

    I did too! But that’s not the point I was trying to make.
    There’s a really interesting idea that I got from Antonio Damasio though I don’t know if it’s original with him.
    He makes a clear distinction between the definitions of the words ‘emotion’ and ‘feeling’ , words that I have always used interchangeably.
    When confronted by some external stimulus evolution produces chemical changes in the brain that lead to what Damasio defines as ‘emotions.’ For example, when I smell bacon cooking, my mouth waters. I’m sure that would still happen even if I was raised to think that bacon was haram.
    Following immediately after the emotion produced by the chemical wash are thoughts which are what the brain does under the influence of these natural ‘drugs.’ These thoughts are what Damasio calls ‘feelings’
    .
    Evolution produces the emotion but the feelings are malleable by culture. Since your feelings are part of your brains environment just as external stimuli are, the thoughts loop back and influence the emotions. So, if I smell bacon, either I think ‘yum’ or ‘some djinn is fucking with my head.’
    .
    I still get the icky feeling, I just know it’s wrong since I no longer have an authority to tell me it’s right.

  8. 8
    kevinalexander

    I still get the icky feeling emotion. Fixed.

  9. 9
    Ben P

    I am not sure why the plaintiffs are ‘ignoring the burning bush in the room.’ Seems to me a very credible argument to point out that the citizens of Virginia understand the ban to be about enforcing a religious norm. That argument would support the notion that any legislator’s “secular intent” in passing the restriction is nothing but a sham. Heck, I’m sure one could probably find tape of many of the state legislators supporting the ban in explicitly religious terms. No real secular intent => only a religious establisment intent => unconstitutonal.

    Maybe one of our legal lurkers can give an opinion on why they didn’t pursue this line of reasoning?

    It sounds to me like the Argument was made by Austin R. Nimocks (the second speaker mentioned), but that the state refrained from making that argument.

    The reasoning in avoiding the argument, I suspect, is that if you go too far down that road you get hit with Romer v Evans.

    In Romer, Colorado passed a law that said “local municipalities can’t pass laws protecting gays.” This is because, as it is today, Colorado is a conservative state with a few very liberal cities.

    The SUpreme COurt 6-3, said this law was unconstitutional, even under the rational basis review, because “the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.” While the precedent is shaky, a common argument from Romer is that mere animus toward a group is insufficient to find rational basis to legally discriminate against that group.

    Consequently, most of the gay marriage cases have tried to find some slim evidentiary pretext to use as a rational basis cover. Because under an ordinary rational basis review, even if the legislature was wrong about the facts, the Court will not evaluate that, because it’s not the COurt’s job to pass laws.

  10. 10
    John Pieret

    Gregory in Seattle @ 6:

    this doesn’t have even an iota of the epic humor value of “Virginia versus Loving”.

    Especially when the official tourism campaign is “Virginia is for lovers.”

  11. 11
    eric

    Ben P: thanks for the commentary, but I think you got my question reversed. I’m asking why Boies and Olson don’t attack the law as (solely or primarily) based in religion. I’m not asking why the State would come up with some veneer of a secular reason for defending it, I pretty much assumed they were going to do that.

    But I haven’t read the original article, so maybe I should go do that now… :)

  12. 12
    Michael Heath

    eric writes:

    I’m asking why Boies and Olson don’t attack the law as (solely or primarily) based in religion.

    That’s seems to me to be a strategically dumb thing to do. Playing the religion card has blowback, there is no blowback focusing on the constitutional clauses Boies and Olson predominately leverage, and that’s the 14th’s equal protection and due process clauses. Those are buttressed by their finding 11 (IIRC) precedents that the federal courts find marriage to be a fundamental right. In fact focusing on the 14th Amendment makes it difficult for one’s opponents, in and out of the courtroom, to fight effectively back since those same opponents falsely claim to be the singular defender of the U.S. Constitution.

    I’m very pleased to see both of these lawyers pound the 14th Amendment in the cases they’ve argued related to the abuse of state authority. It’s all they need, adding an assertion of an abuse of the establishment clause only dilutes the Olson and Boies’ moral authority that it’s they and their clients who defend the U.S. Constitution.

  13. 13
    eric

    Playing the religion card has blowback,

    What blowback? I see it as supplementing the 14th pounding with a little 1st pounding, and making essentially the same argument (albeit on a very different subject) that was made in Kitzmiller vs. Dover: there is no secular purpose and the primary effect is to advance religion, so the legal restriction preventing SSM fails the Lemon test (twice).

Leave a Reply

Switch to our mobile site