California Attorney General Kemala Harris gave an impassioned, pithy defense of marriage equality during an appearance on CNN’s State of the Union Sunday morning in anticipation of the Supreme Court’s hearing on whether California’s Proposition 8, which overturned the state’s marriage equality law, is itself constitutional.

Asked by CNN’s Candy Crowley to explain why she was refusing to defend the state’s proposition, Harris insisted that the measure undermined the fundamental rights of gay Americans, taking away their equal protections under the law:

I am absolutely against a ban on same-sex marriages because [bans] are simply unconstitutional. And it is one thing to read the polls, which we have discussed which show again that a majority of Americans are in favor of same sex marriage, but it is more important to read the Constitution. And the Constitution of the United States dictates, I believe, under every court precedent that we have discussed in terms of describing marriage as a fundamental right that the same-sex couples that are before the United states supreme court — Mrs. Windsor, Miss Perry — be allowed to have equal protection under the laws as any Americans when it comes to their ability to join themselves with their loving partners in marriage and raise their children. And 61% of Californians are in favor of same-sex marriage.

Watch it (Harris’ central case is from :18 to 1:10):

When asked afterwards by Crowley why Californians voted in 2008 to ban same-sex marriage, Harris points out that, in 2013, 61 percent of Californians support equality. But, more importantly, she argued that there were 50,000 children in California “who are asking: why can’t my parents be married too?”

Frank Kameny was a life-long activist for gay rights.

Next week, the Supreme Court will hear the oral arguments on two legal challenges to laws that limit the government’s recognition of same-sex marriage. While there are various legal nuances to how both the Defense of Marriage Act and Proposition 8 cases might be decided, the Justices will actually be weighing a more fundamental question: Do gay people exist?

At the core of conservatives’ argument against marriage equality in both cases is the idea that gay people actually do not exist — only “homosexual behavior” does. In House Republicans’ final reply brief filed this week against DOMA, attorney Paul Clement argued that “sexual orientation is defined by a tendency to engage in a particular kind of conduct.” Proponents of Prop 8 similarly suggested that “sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition.” The U.S. Conference of Catholic Bishops added in its amicus brief that homosexuality is a “voluntary action” just like polygamy. In other words, people are only really gay when they’re having gay sex — otherwise they’re not.

Herein lies greatest challenge for gay and lesbian civil rights: the fact that sexual orientation is an invisible identity. Unlike race or gender, it cannot so easily be superficially assessed. Thus, conservatives are counting on doubt and distrust, urging the Court to dismiss whatever gay people actually say about their lived experiences — discount every individual’s coming out story, ignore decades of gay culture and gay history, and disregard the scientific conclusions of the entire major medical community. In fact, opponents of equality regularly claim that “the gay agenda” is merely a conspiratorial quest to validate sinful behavior — as opposed to an effort to allow millions of people to participate fairly in society.

The Court will have the opportunity to weigh the question of whether gay men and lesbians exist in both a legal and practical sense. The practical case for recognizing gays is simple, yet compelling: gay people exist and more importantly, are already raising children in families. All of the conservatives’ arguments rely on claims about “responsible procreation” and what’s best for children, but not one of them takes into account the millions of children already growing up with same-sex parents. Besides the fact social science research supports same-sex parenting, it’s quite easy to see how those families would benefit from the securities and protections of marriage equality. The Court could simply accept opponents’ arguments about the values and purposes of marriage, but rather than apply them in conservatives’ imaginary gay-free universe, acknowledge that they should apply equally and fairly to gay couples as well.

The magic words to look for if the Supreme Court legally recognizes gay people is “heightened scrutiny,” which is how the Court determines that the government cannot target a specific group for unfair treatment without substantial justification. For example, classifications based on sex are subject to “intermediate scrutiny,” and classifications based on race are subject to the highest level, “strict scrutiny.” When the Second Circuit Court of Appeals ruled in favor of Edie Windsor’s case against DOMA, it determined that intermediate scrutiny should apply. The Supreme Court, however, has not applied any level of heightened scrutiny for sexual orientation in past cases, even when ruling in favor of gay rights, such as Lawrence v. Texas (overturning sodomy laws) and Romer v. Evans (overturning a Colorado amendment banning LGBT nondiscrimiantion protections).

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The legal team defending Proposition 8, California’s ban on same-sex marriage, has submitted a reply brief, a final written argument before next week’s oral arguments at the Supreme Court. The brief reiterates many trite arguments — notably, that opposite-sex marriage can only be defined as “man and woman” because it is important for “responsible procreation,” a rationale that simply dismisses how all the same-sex couples raising children would benefit from marriage.

Obviously, this argument is quite weak because it does little to account for why the government still allows opposite-sex couples who cannot have children to marry. However, this brief offers an outrageous new argument that attempts to justify this inconsistency:

Even if some society (implausibly) desired to mandate that all married couples be willing and able to procreate, such a policy would presumably require enforcement measures — from premarital fertility testing to eventual annulment of childless marriages — that would surely trench upon constitutionally-protected privacy rights. And such Orwellian measures would be unreliable in any event. Most obviously, many fertile opposite-sex couples who do not plan to have children may have “accidents” or simply change their minds. And some couples who do not believe they can have children may find out otherwise, given the medical difficulty of determining fertility. Moreover, even where a couple’s infertility is clear, rarely are both spouses infertile. In such cases, marriage still furthers society’s interest in responsible procreation by decreasing the likelihood that the fertile spouse will engage in sexual activity with a third party and by strengthening the social norm that sexual relationships between men and women should occur in marital unions.

Just to spell this out: marriage is apparently good for couples who can’t have kids because the still-fertile partner will be discouraged from cheating because of the chance for accidental pregnancies. This assumption that monogamy is based only on “responsible procreation” is insulting to all married couples regardless of their fertility, in addition to being silly and somewhat sexist too. Moreover, it completely compromises the very arguments proponents are trying to make. However they may be defining “responsible procreation,” caring for a child is not the same as being sexually monogamous. They have basically admitted that marriage is about a committed relationship and a family unit, as opposed to just making sure the source of the sperm doesn’t abandon the host of the egg it impregnates.

Of course the primary argument in this paragraph is problematic too. When it comes to marriage, proponents are happy to give the benefit of the doubt to opposite-sex couples who may be infertile so as not to impose on their right to privacy, but no such benefit can be offered to same-sex couples who are already raising children. As always, the implication is that biology trumps all other qualities of parenting, an insult to all couples who raise children through adoption, foster care, or surrogacy, regardless of their sexual orientation.

It’s amazing how far opponents of equality will bend over backwards to make sense of their own justifications for discrimination. They don’t seem to care how many families they insult in the process.

(HT: Kathleen Perrin.)

Last week, National Organization for Marriage chairman John Eastman referred to adoption as the “second-best” solution for children, including the adopted children of Supreme Court Justices John Roberts and Clarence Thomas. Eastman has since claimed the AP story  misquoted him, but NOM has a long history of claiming biological relationships are superior to adoptive ones, regardless of the sex of the parents.

The comments caught the attention of Jay and Bryan Leffew, a same-sex couple from California that make YouTube videos about their family. They responded in a touching post outlining some of the various forms of stigma they have experienced as adoptive parents, even from other same-sex parents who used surrogacy instead. Their son Daniel, who is now 12-years-old and has lived with them for seven years, wanted to offer a response of his own, so he penned a letter to Chief Justice Roberts about his experience being adopted by his two dads, which he also read aloud for all of YouTube to see:

MARTINEZ-LEFFEW: When I was in foster care, I was told that I was considered unadoptable because of my Goldenhar Syndrome. That is a genetic disorder that affects the whole left side of my body. I lost my little brother Emilio because some people wanted to adopt him, but they weren’t willing to adopt me because of my medical conditions. Lucky for me, that’s when my two dads came along.

I recently found out that you yourself adopted two kids, a boy and a girl, kind of like me and my sister. Family means a lot of different things to different people, but some people believe you have to have the same blood to be a family. You and I both know family goes deeper than blood. I was lucky to be adopted by two guys I can both call dad. [...]

I know you have a tough decision to make with the gay marriage issue, but my family is just as valuable and worthwhile as any other. It’s especially tough for you because I know you don’t necessarily believe in gay marriage religiously; lucky for us, though, you also don’t believe in taking away a right, even from people like us.

Watch it:

Washington Post columnist George Will.

The Washington Post published an opinion piece Friday by conservative pundit George Will called “The shaky science behind same-sex marriage.” Though Will has admitted there is an “emerging consensus” for same-sex marriage and predicted that the issue will prevail in the Courts, he highlights a brief from Maggie Gallagher’s Institute for Marriage and Public Policy that argues against equality by suggesting that the social science research currently available is not a sufficient rationale for that victory:

A brief submitted to the U.S. Supreme Court concerning the California case by conservative professors Leon Kass and Harvey Mansfield and the Institute for Marriage and Public Policy warns that “the social and behavioral sciences have a long history of being shaped and driven by politics and ideology.” And research about, for example, the stability of same-sex marriages or child-rearing by same-sex couples is “radically inconclusive” because these are recent phenomena and they provide a small sample from which to conclude that these innovations will be benign.

Unlike the physical sciences, the social sciences can rarely settle questions using “controlled and replicable experiments.” Today “there neither are nor could possibly be any scientifically valid studies from which to predict the effects of a family structure that is so new and so rare.” Hence there can be no “scientific basis for constitutionalizing same-sex marriage.”

The brief does not argue against same-sex marriage as social policy, other than by counseling caution about altering foundational social institutions when guidance from social science is as yet impossible. The brief is a preemptive refutation of inappropriate invocations of spurious social science by supporters of same-sex marriage.

Will endorses two arguments here, both of which are unsupportable. The first is that any social science that supports a liberal position shouldn’t be trusted because social science already has a liberal bias. The second is that it’s reasonable to conclude that it’s impossible to measure anything that hasn’t been legalized, even if legalizing it is the only way to test it. Together, these form a tautological argument that social science is only valid and useful if it supports keeping things the way they already are, which is not only a very narrow dismissal of the work social scientists already do, but also a philosophy that inherently prevents change.

Will then proceeds to demonstrate just how susceptible he is to conservatives’ fraudulent interpretations of what science is available:
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Howard University School of Law

The Howard University School of Law is one of the oldest law schools in the country and the oldest law school at any historically black college or university (HBCU). Its Civil Rights Clinic has filed an amicus brief urging the Supreme Court to overturn Proposition 8 by highlighting how all of the arguments against same-sex marriage equality are simply recycled variations on arguments that were used to justify prohibitions of interracial marriage until Loving v. Virginia was decided in 1967 (citations omitted):

In the Jim Crow era, the denial of marriage rights to interracial couples served as one of the most potent symbols of the less-than-equal status of  African-Americans. As recently as 1967, sixteen states still had anti-miscegenation statutes on their books; the last such statute was not officially repealed until 2000. Opponents of interracial marriage justified criminal prohibitions against such unions by pointing to the purported detrimental effect of interracial births and parentage, the supposed destruction of society if people marry between the races, and the so-called natural law rationale for keeping the races separate.

While public debate over interracial unions has generally died since Loving v. Virginia, today the opposition to marriage for same-sex couples relies on arguments strikingly similar to those raised in opposition to interracial marriage. Without acknowledging the racial provenance of these discredited arguments, opponents of marriage equality have attacked same-sex couples as a threat to American society, American families and heterosexual marriage, as an affront to the laws of God and nature, and as a menace to their children.

The brief goes on to highlight five distinct arguments that transcend the debates between marriage equality for interracial couples and marriage equality for same-sex couples:

• SOCIAL ORDER: Marriage equality is a threat to the social order and would “introduce a form of pollution to marriage.”
• SEXUALIZATION: The people who want to get married have relationships that are purely sexual, promiscuous, and “deviant.”
• PSEUDOSCIENCE: Researchers have distorted research to raise fears about supposed consequences of marriage equality.
• JUDEO-CHRISTIAN VALUES: The Bible forbids recognizing these relationships.
• CHILDREN: These relationships will cause physical and psychological damage to the children they raise.

The similarities are jarring, and Howard provides plenty of examples for each to demonstrate just how unoriginal the arguments against same-sex marriage truly are. The brief concludes with this stirring rebuke of equality’s opponents, including a quote from gay black poet James Baldwin:

But the certainty and monotony with which some will always sound the death knell for society, morality, and faith, just because two adults choose to marry, cannot obscure the reality that we heard virtually the same arguments for almost three hundred years to justify preventing two black people from marrying and then a black man from marrying a white woman. Nor, when all is said and done, can these jeremiads about how marriage equality for same-sex couples will lead to our final slouching toward Gomorrah obscure the reality that it is “an inexorable law that one cannot deny the humanity of another without diminishing one’s own.”

(HT: Kathleen Perrin.)

Friday was the deadline for individuals and organizations to submit amicus briefs to the Supreme Court adding to the arguments for marriage equality. Ellen DeGeneres took to her blog to write a brief of her own, hoping that someone will tweet it to the Court on her behalf. Speaking of her marriage to Portia de Rossi, DeGeneres explained that for as happy as she is, they’re still not equal in society:

Portia and I have been married for 4 years and they have been the happiest of my life. And in those 4 years, I don’t think we hurt anyone else’s marriage. I asked all of my neighbors and they say they’re fine.

But even though Portia and I got married in the short period of time when it was legal in California, there are 1,138 federal rights for married couples that we don’t have, including some that protect married people from losing their homes, or their savings or custody of their children.

The truth is, Portia and I aren’t as different from you as you might think. We’re just trying to find happiness in the bodies and minds we were given, like everyone else. [...]

I hope the Supreme Court will do the right thing, and let everyone enjoy the same rights. It’s going to help keep families together. It’s going to make kids feel better about who they are. And it is time.

Here is the monologue DeGeneres shared on her show shortly after her wedding, in which she described the special day:

The American Sociological Association filed an amicus brief urging the Supreme Court to disregard arguments against same-sex parenting in the Proposition 8 and Defense of Marriage Act cases, but a coalition of other medical organizations also filed a brief explaining the consequences of denying gays, lesbians, and bisexuals the freedom to marry. The signers of this brief include the America Psychological Association, the American Medial Association, the American Academy of Pediatrics, the American Psychiatric Association, and the National Association of Social Workers, among other mental health professional organizations. In addition to reiterating the validity of same-sex couples’ parenting, the medical professionals argue that laws like Proposition 8 harm same-sex couples by denying them specific benefits that marriage offers:

Married men and women generally experience better physical and mental health than their unmarried counterparts. These health benefits do not appear to result simply from being in an intimate relationship, for most studies have found that married heterosexual individuals generally manifest greater well-being than those of comparable cohabiting couples. [...]

Being married also is a source of stability and commitment. Marital commitment is a function not only of attractive forces (i.e ., rewarding features of the partner or relationship) but also of external forces that serve as constraints on dissolving the relationship. Barriers to terminating a marriage include feelings of obligation to one’s family members; moral and religious values; legal restrictions; financial concerns; and the anticipated disapproval of others. In the absence of adequate rewards, the existence of barriers alone is not sufficient to sustain a marriage in the long term. Perceiving one’s intimate relationship primarily in terms of rewards, rather than barriers to dissolution, is likely to be associated with greater relationship satisfaction. Nonetheless, perceived barriers are negatively correlated with divorce and thus the presence of barriers may increase partners’ motivation to seek solutions for problems, rather than rushing to dissolve a salvageable relationship.

Lacking access to legal marriage, the primary motivation for same-sex couples to remain together derives mainly from the rewards associated with the relationship rather than from formal barriers to separation. Given this fact, and the legal and prejudicial obstacles that same-sex partners face, the prevalence and durability of same-sex relationships are striking.

In other words, same-sex couples are forming lasting relationships even in spite of the fact that many of the protective factors for keeping families together are not present due to discrimination like Prop 8. Conservatives have argued that gay people shouldn’t have access to marriage because they want it for the selfish reason of validating their intimacy. But as these social science experts argue, the opposite is true — there are benefits to marriage beyond intimacy and commitment, and it’s for same-sex couples’ own well-being that they deserve access to those benefits.

It’s hard to argue there’s a compelling societal benefit for discrimination when social science shows there’s actually a compelling societal benefit for equality.