Even though this week’s Proposition 8 ruling by the Ninth Circuit focuses on the unconstitutionality of taking away the right of same-sex couples to marry as opposed to addressing whether they should have such a right to begin with, the decision does take time to dissect five key arguments used by opponents of marriage equality. Here is a rundown of the anti-gay arguments brought forth in the case and how the Court rebuffed them:
1. CHILDREN DESERVE TWO BIOLOGICAL PARENTS: Proponents of Prop 8 argued that “children are better off when raised by two biological parents” and so only potential biological parents should be allowed to marry. The Court ruled this argument irrelevant, because “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California.” In addition to the fact that California law recognizes that same-sex couples are “fully capable of… responsibly caring for and raising children,” it also favors parental social relationships over biological relationships as it is. So, besides the fact that the argument simply isn’t true, it has nothing to do with the impact of Prop 8 and is entirely inconsistent with California law.
2. MARRIAGE PROMOTES “RESPONSIBLE PROCREATION”: Proponents also argued that marriage has the specific purpose of encouraging “responsible procreation” that needs only be offered to opposite-sex couples — in essence, that because same-sex couples cannot accidentally have children, they do not need (read: deserve) the privilege of marriage. Like the first, this claim is completely irrelevant, because Proposition 8 was a question of rescinding a right, not extending one. For this argument to carry any weight, proponents would have had to prove that same-sex marriage would make opposite-sex couples “more likely to procreate accidentally or irresponsibly.” Given the absurdity of the notion, the Court found that this argument, “to put it mildly, does not help Proponents’ cause.” In addition, “it is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.”
3. CALIFORNIA SHOULD “PROCEED WITH CAUTION” WHEN REDEFINING MARRIAGE: Opponents of equality regularly argue that the “consequences” of same-sex marriage have not yet been realized, but Prop 8 had little to do with “caution.” As the Court points out, “the purpose and effect of Proposition 8 was ‘to eliminate the right of same-sex couples to marry in California’ — not to ‘suspend’ or ‘study’ that right.” Proposition 8 was an unabashed permanent ban on same-sex marriages and cannot be construed as anything less.
4. PROPOSITION 8 HELPED PROTECT “RELIGIOUS LIBERTY”: The Court quickly dismisses the claim that banning same-sex marriage has anything to do with preserving so-called “religious liberty,” given Prop 8 did not change any of California’s antidiscrimination laws that protect sexual orientation. Any equality opponent wishing to use religion as a means to refuse services to same-sex couples gains nothing from Prop 8.
5. CHILDREN WOULD BE TAUGHT THAT SAME-SEX MARRIAGE AND TRADITIONAL MARRIAGE ARE THE SAME: Conservatives have stoked fears that LGBT equality threatens children for decades, and did not hesitate to do the same regarding Prop 8. The Court found little weight in this argument, pointing out that California law empowers schools with control over the content of their sexual health education curricula. Similarly, schools are prohibited from discriminating on the basis of sexual orientation — Prop 8 or no Prop 8. Perhaps most poignantly, the Court pointed out that schools are supposed to teach reality:
Schools teach about the world as it is; when the world changes, lessons change. A shift in the State’s marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discover of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them. But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particular governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors. The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy.
More than anything, this decision demonstrates that most of the arguments against same-sex marriage have little to do with the institution of marriage itself. Just as Judge Vaughn Walker found in his original opinion, the only compelling explanation for banning same-sex marriage is animus against the gay community.