What is the government’s interest in preventing gay marriage? Here’s your answer -

by on December 14, 2009  •  In Constitutional law, Marriage

Many people who don't actually care a great deal one way or the other about gay marriage find it difficult to imagine why they should care. After all, how does allowing same-sex couples to marry affect your typical heterosexual married couple? This is the single hardest question for the opponents of marriage equality to answer and the one on which Jon Stewart etc can most reliably trigger laughter in ridiculing their priggishness.

Well, thank goodness for lawyers. In the pretrial brief filed in Perry v. Schwarzenegger, the defendants had to  identify what they believed to be the legitimate state interests behind Prop 8, the California constitutional amendment that prohibited same-sex marriage. And being the excellent lawyers that they are, they came up with not one, not two, but 47.  Yes, 47. Three more and the whole thing could join AARP.  But I digress.

The first five of the 47 are really the same thing – enforcing "traditional" marriage – although the idea is ingeniously morphed into five variations: "preserving the traditional institution..," "preserving the traditional meaning…," "preserving the traditional purposes…, "preserving the traditional meaning …as it has been defined in English," [think how many more there could be: in Spanish, in Mandarin, in Farsi,...] and "expressing support for the traditional institution of marriage." Just when did "traditional" get to be a magic word, some kind of unassailable talisman? Oh right, Justice Scalia.

You have to assume that the first five represented their best shot. So who should get credit for using so many words to say the same thing? I see a litigation team meeting, in the conference room of Chuck Cooper's firm, with multiple associates around a table tweaking the language. I see billable hours.

And what of the other 42 justifications – where are the zingers to deploy against the Jon Stewarts of the world? Or even to just answer the "whatever dude" masses of potential turncoat heterosexuals?

Well, I can't do justice to all 42 of them.  So here are my 10 favorites, in Letterman order:

10. Preserving "the prerogative and responsibility of parents to provide for the ethical and moral development and education of their own children" (against those child-snatching gay couples);

9. To avoid "the further, and in some respects the full, de-institutionalization of marriage" (silly me, I thought people wanted to be de-institutionalized);

8. To avoid "publicly replacing the idea that parenting is largely gendered with the idea that parenting is largely unisex" (which is to say, cliches about mom- and dad-ism become harder in same-sex couples);

7. To avoid replacing "the norm of the natural parent with the norm of the legal parent" (have you ever heard of adoption?);

6. To avoid "enshrining the principle that sexual orientation, as opposed to sexual embodiment, is a valid determinant of marriage's structure and meaning" (what the hell is "sexual embodiment"?);

5. To avoid "ending or diluting the public socialization of heterosexual young people into a marriage culture" (sounds like a Moonie wedding);

4. To avoid requiring "that all relevant branches and agencies of government formally replace the idea that marriage centers on opposite-sex bonding and male-female procreation with the idea that marriage is a private relationship between consenting adults" (not that! not consenting adults!);

3. To avoid increasing "the likelihood that bisexual orientation could become a legitimate grounding for a legal entitlement to group marriage" (I knew there was a reason to be bisexual);

2. To avoid contributing to "the belief that marriage in our society is now politicized" (not like in the good old days when women were serfs, for example); and …..

1. To serve the interest of "using different names for different things." (Res ipsa loquitur baby)

Pretty impressive, huh?  As I said, lots of billable hours.


5 Responses to What is the government’s interest in preventing gay marriage? Here’s your answer -

  1. Prup (aka Jim Benton) December 14, 2009 at 7:28 AM

    Ah yes, but consider the billable hours our side will be charged for the time our lawyers take to get themselves under control after the initial bout of hysteria reading the list causes. And the time reading the initial response from our clerks and writing the reply, “Dear Murdoch, ‘bullshit’ while, it may be accurate, is not considered appropriate language in a filing in this court.”

    Actually, 8 and 4 alone should be target enough.

  2. Phil Melemed December 14, 2009 at 3:04 PM

    Regarding #4 and marriage being a private relationship, I thought that Marriage was a Public Relationship with Public Governmental $upport, filed in Public Records, subject to Public Legal Constraints and Obligations, and in certain religions made expressly public by the requirement of Posting of Banns. Sure, what happens between consenting adults in private (like gay sex, for example, or adultery in almost all states and the District of Columbia) is certainly nobody else’s business (including the governments interest) and is a private matter. But Marriage, Traditionally, is inherently Public.

  3. Jeff December 14, 2009 at 5:07 PM

    My own favorite is No. 4, which I translate as: “Marriage is for making babies, dammit.”

  4. Mad Professah December 14, 2009 at 9:30 PM

    I really think you would do a great service if you posted all 47 reasons, verbatim from the brief, with commentary, of course :-)

  5. Gib Wallis December 29, 2009 at 12:20 PM

    I will be interested to see the marriage equality side quote the California and especially the Connecticut marriage decisions which addressed and debunked all of these reasons.

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