Prop 8 and DOMA: 5 Questions SCOTUS Should Answer Before Deciding Gay Marriage


Five moral matters are about to be decided by the Supreme Court, in two of the many civil marriage disputes that have been percolating for 22 years in agencies, legislatures, and courtrooms across the nation.

The Court is about to hear oral arguments challenging two same-gender marriage bans.  California's Proposition 8 bans civil marriage for same-gender couples and families, and forces them into second-class domestic partnership. The federal Defense of Marriage Act (DOMA) ignores civilly married couples and families whenever spouses are of the same gender, and denies them access to 1,138 federal programs, including most military pay and benefits.  These are the first two marriage equality cases to get Supreme Court reviews since 1967, when all laws banning interracial couples from civil marriage were declared unconstitutional.

In these and many similar lawsuits now underway, looming over the cases, the judges, and America are five moral questions. In order to recognize the moral questions, one must first understand the disputes, and then hear the arguments.

Four core facts are undisputed. (1) Families — headed by both same-gender couples and mixed-gender couples — often raise children from prior marriage, fertilization, surrogacy, foster care, and/or adoption. (2) Regardless of pregnancy type or family structure, all children have the same constitutional rights. (3) In 2011, the Census Bureau counted 646,464 same-gender couples nationwide, and 19% of those are raising children. (4) Of those 646,464 couples, 22% live in states where they now can marry, but 78% live in states where they still cannot marry.

Given these facts, the two lawsuits arise from two practical questions. Should states ban marriage for same-gender couples? Should governments treat such couples and their children as inferior to other families? More than anything else, the outcomes will be driven by the ultimate morality query for Americans: Do we treat others the same way that we ourselves want to be treated? The opponents of equality say, "No, we do not, and we should not."

Those opponents of equality are the Mormon and Roman Catholic Church officials who funded the campaign and legal defense for California Proposition 8, and the Republican Party officials who are funding the legal defense for DOMA.

In their latest briefs filed with the Supreme Court, Mormon- and Catholic-funded leaders (here and here) and Republican Party leaders (here and here) now argue that true gays and lesbians don't even exist, that all of humanity is heterosexual, that people who claim to be gays or lesbians are just heterosexuals who "choose to misbehave," that they're mentally ill, and they're curable, but they refuse to be cured, so that's why they should be denied equality under the law (no peer-accepted, scientific evidence supports such ideas, and all major professional organizations reject these claims).

These opponents insist that mixed-gender couples are superior to same-gender couples, that government should promote "natural" procreation (no contraception, no fertilization, no surrogacy), and should ban same-gender marriage to promote mixed-gender marriage. They argue that because mixed-gender couples produce unplanned, unwanted offspring and same-gender couples do not, that's why society should ban marriage for same-gender couples.

These opponents claim that mixed-gender parents are ideal and superior to same-gender parents (even though peer-accepted, scientific studies disprove that claim). These opponents admit that most children of mixed-gender parents are unplanned and unwanted, and then argue that government should promote mixed-gender parents and their children by penalizing same-gender parents and their children.

These opponents claim that same-gender couples don't procreate, they rarely raise children, they cut marriage/birth rates and raise promiscuity rates among mixed-gender couples, they kill civilizations, and they'll make humanity extinct (that's untrue.  Same-gender couples do procreate — via fertilization and/or surrogacy — they do have children — from prior partners, foster care, and adoption — and they often raise children — most of whom are abandoned by mixed-gender couples). Despite 22 years of campaigns and courtroom trials, marriage equality opponents never once showed how banning marriage for same-gender couples would raise marriage rates, boost birth rates, or cut promiscuity among mixed-gender couples. And there's no scientific evidence suggesting that same-gender marriage kills civilizations, or could end the human race.

These opponents imagine that same-gender marriage might have an unknown flaw today that could be catastrophic tomorrow, and that this is why the justice system should do nothing.

These opponents of equality argue that same-gender couples should stop asking courts to overturn unjust laws, and should instead take the long, unaffordable route of obtaining fairer laws through 43 legislatures (41 states, the Puerto Rico territory, and Congress).  They say that since same-gender couples are gaining political power, they might eventually get to marry after all, and so past and present discrimination should count for nothing. They say that national divisiveness is beneficial, and a court ruling would end that benefit, so the current divisiveness should continue.

In particular, the Republican Party defenders claim that although DOMA does hurt couples and families, that was just an accident, so it should continue. They claim DOMA saves money (i.e., mixed-gender couples get more benefits when same-gender couples get nothing). DOMA never saved money. That was proven nine years ago by the Congressional Budget Office.

Facing all these claims made by the opponents of equality, America's nine top justices can decide these cases only after they answer — for themselves — five morality questions:

1. Will society admit that gays and lesbians actually exist, as real people?

2. Will society allow couples seeking civil marriage to privately choose their own beliefs?

3. Will society recognize that all legally married couples and families have the same constitutional rights, regardless of the number of children or their source (prior marriage, fertilization, surrogacy, foster care, adoption)?

4. Will society treat every civilly married couple equally, regardless of their breeding ability, pregnancy method, desire for offspring, or intent to procreate?

5. Will society treat every couple equally to every other couple, every spouse equally to every other spouse, and every child equally to every other child?

If the justices answer "yes" to all five morality questions, then their decisions will honor the Golden Rule: "Do unto others as you'd have them do unto you." But if they answer "no" to even one of these five morality questions, then the Constitution will cease to be inclusive, and American democracy will lose its moral authority.

If the Mormon, Catholic, and Republican opponents of equality win at the Supreme Court, then the federal government will continue its current unfairness, in which mixed-gender couples are still treated as if they all have children (even when they don't, won't, or can't), and same-gender couples are still treated as merely unmarried friends, with children who are inferior.

Ned Flaherty is a Projects Manager at Marriage Equality USA. In this article, he represents himself, not the organization. He writes from Boston, Massachusetts.