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‘Family’ Group To Supreme Court: Same-Sex Couples Are Not Gay

By Zack Ford on January 29, 2013 at 1:22 pm

"‘Family’ Group To Supreme Court: Same-Sex Couples Are Not Gay"

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The Family Research Council, an anti-gay hate group, has filed amicus briefs in both the Defense of Marriage Act and Proposition 8 cases before the Supreme Court. In these briefs, FRC claims that gays and lesbians do not deserve nondiscrimination protections because of their sexual orientation, but adds that even if they did, the Court could still rule against them in these cases. The group explains this by pointing out that gay people can enter opposite-sex couples, and thus laws like DOMA and Prop 8 do not discriminate specifically against gay people, just same-sex couples:

In his concurring opinion in Andersen v. King County, Justice J. M. Johnson noted that the state DOMA “does not distinguish between persons of heterosexual orientation and homosexual orientation,” and identified a recent case in which a man and a woman, both identified as “gay,” entered into a valid opposite-sex marriage. It is apparent, therefore, that the right to enter into a marriage that would be recognized under § 3 of DOMA “is not restricted to (self-identified) heterosexual couples,” but extends to all adults without regard to “their sexual orientation.”  Contrary to the understanding of the California Supreme Court,  a law that restricts marriage (or the benefits thereof) to opposite-sex couples does not, on its face, discriminate between heterosexuals and homosexuals.  The classification in the statute is not between men and women, or between heterosexuals and homosexuals, but between opposite-sex (married) couples and same-sex (married) couples.

FRC could have used the same argument in 1967 to defend bans on interracial marriage, something like, The classification in the statute is not between white people and colored people, but between same-race couples and mixed-race couples, differentiated for the purposes of racial integrity. Just as it’s clear such an argument would still be discrimination based on race, so too are DOMA and Prop 8 discrimination based on sexual orientation.

FRC relies on its own myths to support its other myths. The brief argues essentially that gay people don’t exist — that their identities are not immutable and can only be defined by behavior. Only with this narrow conception of the lives of gay people would any of these arguments hold up, and fortunately reality modern-day reality does not allow for such naivete.

It’s worth noting that RightWingWatch also noticed a stunning contradiction in FRC’s briefs. In an attempt to dissuade the Court from recognizing sexual orientation as a suspect class (like race and gender), FRC argues in the DOMA brief that gays are a powerful group, particularly given the victories for marriage equality in the November 2012 elections. However, in the Prop 8 brief, FRC argues the opposite: since 30 states have banned same-sex marriage, there is no “emerging awareness” that the right to marry extends to same-sex couples. In other words, FRC’s version of “truth” is whichever spin supports its argument against equality.

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