As conservatives make their case against marriage equality, they’ve found themselves stuck arguing that biological procreation is what counts and then trying to explain how infertile opposite-sex couples are okay. San Francisco Archbishop Salvatore Cordileone, who is considered the father of Proposition 8 and who will be speaking at the National Organization for Marriage’s march next week, fell into just this trap in an interview with USA Today.

Here’s how he tried to explain why marriage is still appropriate for opposite-sex couples who cannot conceive but not for same-sex couples:

CORDILEONE: Our bodies have meaning. The conjugal union of a man and a woman is not a factory to produce babies; marriage seeks to create a total community of love, a “one flesh” union of mind, heart and body that includes a willingness to care for any children their bodily union makes together.

Two men and two women can certainly have a close loving committed emotional relationship, but they can never ever join as one flesh in the unique way a husband and wife do. [...]

Treating same-sex relationships as marriage is the final severing by government of the natural link between marriage and the great task of bringing together male and female to make and raise the next generation together in love.

Conservatives have proven repeatedly, particularly in recent weeks, that they are incapable of acknowledging that same-sex couples are already raising children — and effectively at that. What Cordileone’s actually saying here is that gay couples’ relationships are simply inferior to straight couples’. This argument has nothing to do with children; it’s just plain bigotry.

Thursday evening, the Rhode Island Senate Judiciary Committee held a hearing on marriage equality legislation that lasted a staggering 12 hours — until 4:57 AM Friday morning — allowing every single individual who wanted to testify for or against the bill to do so. One of the most compelling testimonies came from 12-year-old Matthew Lannon, who explained about why his two moms and two dads deserve marriage:

LANNON: Both my moms and my dads have been together for 14 years. When I think about what marriage means to me, I think it’s about two people that love each other. My parents certainly fit that description. Although they can’t legally marry, their commitments are very very real. My parents have stayed together through sickness and health, through thick and thin, through good times and bad…

So even though I’m only 12, I have some ideas of what’s important to me. I want to be someone who knows no discrimination. I want to become a man who doesn’t judge someone by the color of their skin, their gender, or who they love. I want to use the gift I was given to help make the world a better place.

In closing, here’s what I believe. If there’s one thing you don’t mess with in life, it’s love. My parents and all the other gay and lesbian people here just want to be happy, just like you. All they want is to be treated fairly. But unlike most of you, they have to come again here year after year and explain over and over why their love is equal to yours. This year, you have the opportunity to change that. I say: choose love.

Watch it (via Providence Journal):

The New Civil Rights Movement has more analysis of the long night of testimony. This is the first time marriage equality has been considered in the Senate, having previously been blocked by Senate President Teresa Paiva Weed (D). The committee did not vote before convening this morning.

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 American Academy of Pediatrics, which has over 60,000 members, has long been supportive of same-sex families, signing onto court briefs supporting marriage equality and defending LGBT youth from anti-gay efforts like the “Don’t Say Gay” bill. Now, for the first time, the group has formally endorsed marriage equality as an organization, championing how marriage benefits same-sex couples’ children.

The full report cites dozens of studies about same-sex parenting and even takes time to debunk the politically manipulated Regnerus study for not actually assessing data on committed same-sex couples raising children. It concludes:

On the basis of this comprehensive review of the literature regarding the development and adjustment of children whose parents are the same gender, as well as the existing evidence for the legal, social, and health benefits of marriage to children, the AAP concludes that it is in the best interests of children that they be able to partake in the security of permanent nurturing and care that comes with the civil marriage of their parents,without regard to their parents’ gender or sexual orientation.

Marriage equality can help reduce social stigma faced by lesbian and gay parents and their children, thereby enhancing social stability, acceptance, and support. Children who are raised by married parents benefit from the social and legal status that civil marriage conveys to their parents.

When marriage of their parents is not a viable option, children should not be deprived of the opportunity for temporary foster care or adoption by single parents or couples, irrespective of their sexual orientation. Public policy and community support are vital to the success of children in these circumstances.

The AAP should not be confused with the impostor group, the American College of Pediatricians, a fringe group of conservatives that promotes ex-gay therapy and opposes LGBT equality. That group unsurprisingly hides its membership numbers, but likely has no more than 200 members.

Social science reflects reality; same-sex couples are already raising children, so it’s not hard to conclude how those families would benefit from the legal protections of marriage equality.

There’s a polished new guide to opposing marriage equality released by a coalition of anti-gay organizations, whose partnership alone is notable: the Alliance Defending Freedom, Family Research Council, National Organization for Marriage, and Heritage Foundation. The entire argument put forth by the booklet is that marriage benefits children, citing only the thoroughly debunked Regnerus study to suggest same-sex parents should not be allowed to have children:

All people are capable of loving children, but all the love in the world can’t turn a mother into a father or a father into a mother. A child needs a mom and a dad. Children do better when raised by their married mom and dad, and decades of social science evidence show this. We shouldn’t place the desires of adults over the needs of children.

The latest and most comprehensive research continues to confirm what social science has shown for decades: children do better when raised by a married mother and father. The New Family Structures Study by Mark Regnerus of the University of Texas–Austin and a report based on Census data recently released in the highly respected journal Demography supported this idea. Still, the social science on same-sex parenting is a matter of significant ongoing debate, and we shouldn’t let it dictate our choices about marriage.

The Demography report cited here attempted to apply the same faulty methodology from the Regnerus study to research that actually showed that children of same-sex parents perform as well academically as children from other families.

The document is set up in a “Frequently Asked Questions” format, but one question is notably missing: “What about the millions of children already being raised by same-sex couples who would benefit from the legal protections of marriage?” Instead, these groups make their arguments as if these families simply don’t exist — they have to, because they have no answer to the question.

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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This week, the National Organization for Marriage’s John Eastman explained that adoption is the “second best” option for children when heterosexual couples can’t biologically have children of their own, including Supreme Court Chief Justice John Roberts, who adopted two children with his wife. The comment echoes an argument made in the Defense of Marriage Case that biological parents have a unique stake in the success of their children, and thus same-sex children do not deserve marriage. At CPAC Thursday, the Washington Blade asked Brian Brown if he agrees with Eastman’s statement, and Brown did his best to deflect without dissenting:

BROWN: Well, the reality is that on any indicator we’ve been able to measure since the explosion and the break down of the family from the 60s to the present is that children do best with both their mother and father. Obviously, we need to encourage adoption, we need do everything we can to help single motherhood. [...]

It’s entirely different when you put into the law the notion that either mothers or fathers are completely expendable. And that, at it’s nature, is what same-sex marriage is all about: two moms or two dads are essentially the same as a mother and a father. That is not the case. Children have rights, too. Children have a right to have a chance to have both a mother and a father.

Though Brown omitted the word “biological” from his answer, the word “their” is key for distinguishing biological children from children adopted by (other) parents. It’s not difficult to assert this is Brown’s position because he’s made the point before — notably in his dinner-table debate with Dan Savage:

BROWN: The notion—the simplistic notion that because parenthood is connected with marriage—because marriage is that institution by which society connects children to their biological mothers and fathers—the simplistic idea that somehow that means what we’re saying is that every single person has to have a child—that’s silly. We never claim that. Marriage is the institution that does this… Marriage is the institution that connects that child to both their mother and father, and that’s why the state is interested in marriage. Because marriage is the institution that allows children to know both their mother and father.

Of course, NOM’s Jennifer Roback Morse also repeatedly makes this anti-adoption claim. Whether she’s endorsing child kidnapping from same-sex couples or calling for the imprisonment of lesbians who buy sperm on craigslist, her argument remains that somehow the biological connection between parent and child takes precedence. Of course, there is no evidence to support this notion.

This line of reasoning seems to stem from a post-hoc attempt to rationalize inequality in ways that don’t sound blatantly discriminatory. Rather than admitting that DOMA and Proposition 8 were intended to target gays and lesbians, conservatives invented the idea that marriage should be reserved for straight couples because it “promotes procreation.” When confronted with the counterargument that straight couples who cannot conceive are still allowed to get married, they had to invent yet another new argument: that the biological connection with children is still preferential. They knew that nobody would interpret that to mean that all adoption should be banned, even though that’s the implication. In fact, the argument only works with the assumption that same-sex parenting is still worse than opposite-sex parenting, even though to make that case they’ve now offended every adoptive parent, every foster parent, and every parent who has ever used a surrogate, a sperm donor, or other fertility treatment to have a child.

Hopefully both Chief Justice Roberts and Justice Clarence Thomas, who also adopted, appreciate that same-sex parents are just as capable of loving a child without a direct biological link as they’ve been able to love their own.