Courts, part 3: Why Equality is on a Winning Streak

The arguments for same-sex marriage are compelling; the arguments against it are hyped but hollow.  Pro-equality lawyers absolutely blow the anti-equality side out of the water.  We've seen this in court case after court case, from Canada to Israel, and from Brazil to Massachusetts.

The rulings consistently find that:

1. Denying same-sex couples the right to marry serves no legitimate state interest
2. Permitting same-sex couples to marry does not affect opposite-sex marriage, divorce, or the number of children born in marriages or outside of marriages
3. The religious or moral views held by the majority cannot decide which rights can be either withheld or granted to a minority -- the constitution is the ultimate law of the land, not religious texts.

I love reading court transcripts from various same-sex marriage cases because they're so entertaining.  When reading them, it's easy to see why the anti-equality side crashes and burns.  Their "argument" is based on four premises:  that marriage is deeply religious and has always been between a man and a woman; that marriage will be destroyed if LGBTs get to have it too; that kids in same-sex households will be molested; and that we'll go extinct as a species.  Each of those arguments are rooted in ignorance and are easily dismantled, even by inexperienced lawyers, and show that the root cause of the opposition is fear:  fear of the unknown and fear of change.

Opponents argue that same-sex marriage will weaken the institution of marriage, but they cannot explain how or show evidence of that happening anywhere.  They argue that marriage is society's pillar and fundamental to human survival because of its procreative purpose, but they cannot explain why letting gay people marry would bring about the destruction of the human race or show any proof of such impending doom underway.

Courts deal with proof and evidence, not fear and speculation, and judges are asking anti-equality attorneys:  "Where's the evidence for your claims?"  They have none, of course.  That's why they lose.  And no, quoting the Bible is considered neither proof nor evidence.  Sorry.

During a couple of the state Supreme Court cases in the U.S., the anti-equality side actually sat down and remained quiet for the last portion of the trial because they had no logical arguments to bring forth.  They could only repeat their fears and worries, all of which were proven wrong by facts or shown to be wrong by the experience of other countries and states that already have marriage equality.  They sat and went silent because they knew they had lost long before the gavel ever came down.

Oh dear, more anarchy caused by same-sex marriage!

It puts a grin on my face when I read about my country, Norway, or our neighbor country to the south, the Netherlands, being used as an example in same-sex marriage cases in other parts of the world.  One of the arguments of the negative side, after all, is that legalized same-sex marriage causes societal decay and a slippery slope into tyranny or anarchy.  (Tyranny means a cruel government and anarchy means chaos due to no government, so I think they should try to decide which one will be the outcome.)

Attorneys bring up my country and mention that it's one of the safest countries in the world, has one of the highest standards of living in the world, is ranked as the least corrupt country in the world, has one of the highest per capita income levels in the world, tops the list in terms of personal liberties and equality, and it has not seen a drop in heterosexual marriages or a rise in divorce.  We're not crumbling, collapsing, deteriorating into chaos or being punished by the Almighty with asteroids and 9.0 earthquakes.  We haven't slipped into a moral free fall where people are asking to marry their pets.

We're doing just fine.  In fact, nothing at all has changed since the right to marry was extended to same-sex couples, other than the fact that we've become a more inclusive country that can set an example for other countries to follow.

In the Philippines a common argument (I would say the most common argument) revolves around religion.  "Marriage is a sacrament of the Church," "We shouldn't disobey the Church," "The Church doesn't approve," the church the church the church.  My response:  So what.  I don't mean that disrespectfully, it's just that what the Church says and thinks doesn't amount to a hill of beans in a secular court.  They are opinions and beliefs and traditions, not facts.

If you're religious, that's great, but it has absolutely no bearing upon the constitution or the civil law of a modern democratic nation.  If the Church doesn't approve of same-sex marriage, that's fine, they don't have to conduct any same-sex marriage ceremonies.  Nobody wants to force them to do that anyway.  If you're a Catholic and you don't like same-sex marriage, that's fine, you don't have to marry a person of the same sex.  But church doctrine is not Philippine law.  Bible quotes or the opinions of your bishop cannot be submitted in a secular court of law as "proof" or "compelling evidence" of anything (at least not in Western nations).  What matters is the constitution and the right of all citizens to be treated fairly and equally before the law.

I like what New York governor Andrew Cuomo says.  He's a Catholic, and he also happens to be a huge supporter of marriage equality.  "I happen to be a Catholic, and that's my business, that's my religion," he said.  "This has nothing to do with my beliefs as a Catholic.  This is marriage in a civil context -- marriage as defined by government, not by a religion."  Now that's maturity, and that's leadership.

Interestingly enough, some of the judges and Supreme Courts who have issued rulings in favor of same-sex marriage have been conservative.  The six California Supreme Court Justices who ruled in favor of same-sex marriage, for example, were all appointed by Republican (conservative) governors.  The federal judge who found Prop. 8 to be unconstitutional was appointed by president Bush Sr., a conservative.  The 79-year-old honors-laden federal judge who found the Defense of Marriage Act (which defines marriage as one man and one woman) to be unconstitutional was appointed by president Nixon, a conservative.  The majority of the Justices of the Iowa Supreme Court, who legalized same-sex marriage in that state, were also appointed by a Republican governor.  That court ruled unanimously that:

"Our responsibility [...] is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply engrained practice or law viewed to be impervious to the passage of time.  The legislature has excluded a historically disfavored class of persons from an extremely important civil institution without a constitutionally sufficient justification."  [Underline emphasis mine.]

That was said by a largely conservative court in a largely conservative state.  It goes to show just how inadequate and baseless the anti-equality side's arguments are in the light of the law.  It also shows that an excuse of "the legislature should do this, not the court" isn't a sufficient reason for denying equality.  As I said in my last post, this is one of the functions of an independent judiciary in a democracy.  They can review laws, they can order them to be changed, and they can also find them unconstitutional and strike them down.

As Ontario Superior Court Justice J. LaForme stated in that Canadian province's same-sex marriage case,

"[G]roups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time.  If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the [Constitution] will be reduced to little more than empty words."

So what does the anti-equality side have going for it?  Legally speaking, in a court of law, very little.  Tradition cannot be called upon, religion cannot be called upon, conjecture, speculation, and fear cannot be called upon.  Without those key ingredients in their case (which essentially is their entire case), their case doesn't turn out to be much of a case at all.

The anti-equality side is on a losing streak, and that losing streak will continue.  It's not because of liberal activist judges pushing some imaginary "gay agenda" on the masses, it's because the anti-equality side has a weak and discriminatory defense.  If I were on the anti-equality side, I'd start to wonder if I had the facts to shore up my moral disapproval.  I'd start to wonder if I were on the right side at all.

"Marriage is a right belonging to persons.  It is not a right belonging to the State."  -Ted Olson, lead counsel in the California Prop. 8 marriage equality case.

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