Counsel, I’m not sure it’s necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?
Goodwin seems to think this a brilliant insight, "suggesting a way for the chief justice to strike down state bans on gay marriage on relatively narrow grounds, without finding a fundamental right to marriage for LGBT people." The tactic was first tried twenty years ago in Hawaii and, according to Goodwin, most judges since have rejected it, preferring arguments that focus on discrimination against gays as a group (like blacks and women) and specifically against their sexual orientation.She's wrong on both counts. Roberts' question is stupid (sorry for the ad hominem but I'm fed up).
To claim that prohibiting Tom from marrying Joe is an instance of sexual discrimination is tantamount to the claim that informing Tom that he cannot be a wife or a mother is likewise such an instance. A man cannot be what by nature he is not.
Second, those of us opposed to gay "marriage" do not base our objection on sexual orientation but on behavior, on our conviction that the kind of behavior consequent to the attraction between male and female is the only kind that makes any moral sense, whether of natural origin or divine ordination and, further, only within a formalized commitment that righteously envelops and protects any children who should happen by. Homosexual couples indulge in deviant and directionless acts of sexual mimicry, upon which society will be compelled to bestow its approval should the Supreme Court break bad (which it's done before).
This is the unwashed elephant in the room - sex. What the justices - and even the attorney arguing for the state bans - seem uninterested in discussing is whether human sex acts have an intrinsic purpose, and whether certain acts that seem contrary to this purpose are right or wrong. The moral argument has disappeared, vanished. Which leads me to William Saletan's article at Slate, in which he positively gushes over Justice Ginsburg's brilliance (as did Goodwin over Roberts) when she asked Bursch what states should do
"when a 70-year-old straight couple asks for a marriage license? 'You don’t have to ask them any questions,' she pointed out, 'to know they’re not going to have any children.' If marriage is for procreation — and gay couples are excluded for that reason — why aren’t old couples excluded, too?
The man to whom Ginsburg posed the question, an attorney representing states that forbid gay marriage, had no good answer. And his inability to explain the discrepancy cuts to the heart of the issue..."
As further proof, he quotes the Human Rights Campaign's brief to the court:The man to whom Ginsburg posed the question, an attorney representing states that forbid gay marriage, had no good answer. And his inability to explain the discrepancy cuts to the heart of the issue..."
[T]here are at least three different kinds of couples who might qualify for marriage: (1) fertile straight couples, (2) infertile straight couples, and (3) infertile gay couples. Assuming arguendo that the state’s only interest in marriage is to channel “responsible procreation” (which is clearly not the case in any event), it might make sense to draw a line between the first and second groups. But once the second group is allowed to marry, what sense does it make to draw the line between the second and third groups, who are identically situated for these purposes? After all, it is not as if the second group can “responsibly procreate” any better than the third group.
And so now we have two invincible arguments supporting gay 'marriage,' one based on sexual discrimination and the other on sterility. Note that I did not say, as did the HRC, "infertility." Their reference to "infertile gay couples" implies that some are fertile, which of course they are not. Ever. But both arguments rely for their validity on a complete absence of concern about whether moral distinctions can be drawn among the various sex acts by which humans are tempted.To be perfectly candid, I don't believe that either of these writers considers the arguments they recommend to be unanswerable. I think Goodwin knows quite well that a woman is not being discriminated against when told that she can be only a wife, not a husband, only a mother, not a father. And I am convinced that Saletan knows equally well that infertility brought on by the inevitability of age, or the sterility of a biological defect, is quite different than the barrenness inherent, not in their biology, but in the very nature of the homosexual relationship - every homosexual relationship. And I am sure that he knows even more equally well that what that 70 year old couple can do is something that homosexuals cannot: have sex. You know, real sex, sexual intercourse, of the kind that unites man and woman in body and soul, of the kind which consummates a vow of fidelity even if the hope of fecundity is gone, and which is impossible to their same-sex mimics. For each member of that same-sex couple owes his very existence to some other opposite-sex couple in whom that hope of fecundity was not forlorn.
I'm repeating myself, I'm sure. I've said it all before. What I believe about all the energetic apologies for the same-sex mockery of marriage is not that they are noble pleas for equality under the law, but rather attempts to cloak behind a rational facade what is in reality a (mostly unspoken) desire to extirpate from public life and law whatever remains of Christian virtue's tyranny over us. That peculiar brand of virtue is in its senility in any case, and soon every man may be happy in the depravity of his choosing. That's the real "elephant in the room."
I should add that it is possible that Justice Roberts' question might have been his sly effort to point out an irony, that those who would destroy the importance of sex to marriage would base their argument in sex discrimination - in which case I'll readily apologize. But I'll have to see the evidence to believe it. I'm not convinced he's that clever.
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I fear, candidly, that we Christians — and Catholics especially — are in for a crucifixion in coming years. Let us never forget that at least with Our Blessed Lord, that crucifixion was a prelude to the glorious mystery of His Resurrection.
I fear, candidly, that we Christians — and Catholics especially — are in for a crucifixion in coming years.
If you’ve been following the news, then you know that it’s already begun. Right now we stand before Pilate and the Sanhedrin, accused of a crime and threatened with ruin. The really bad stuff will come later.
I have a terrible feeling that Roberts is going to turn traitor on this one, and not only traitor to principles of right and wrong in general but to the meaning of the Constitution.
By the way, there is as yet no equal rights amendment to the constitution of the U.S. By my recollection, that is what was used in Hawaii and in Massachusetts, since they do have ERAs to their state constitutions. However, when the ERA was being proposed back in the 70′s the conservatives said it would be used this way and the liberals denied it.
Now, many precedents from SCOTUS have more or less _invented_ something like the ERA at the federal constitutional level even though it was never passed. Roberts’s suggestion is the next step–take this wholly invented special status for gender as a protected class and apply it to impose homosexual “marriage” on the whole country.
If he does that, he will earn justified disgust and contempt from all constitutional originalists. And he must know better. It almost makes one wonder if the administration is blackmailing him somehow, though that of course is pure conjecture.
Yeah, me too. We’ll know soon.