TPM reviews the history of anti-gay marriage laws and constitutional amendments now that they’re on the verge of being thrown out. Opponents of marriage equality have been claiming that these laws were not enacted with any animus intended towards same-sex couples, but the arguments made at the time these laws were being debated clearly says otherwise.
The leading opponents of same-sex marriage have been attempting to re-write recent American history, where decades of sneering public attacks on gays and lesbians, condemnations of their “lifestyle,” and blaming them for a decline of America’s moral virtue are quietly forgotten.
Their argument, made in front of the Supreme Court, no less, is that gay marriage bans are not motivated by prejudice toward gays and lesbians, but by a more noble if newfound purpose. In the days to come, the justices will reveal whether they subscribe to this new version of history in a decision that could decide whether gay couples have the right to marry nationwide.
Sweeping cultural change coupled with past decisions by the Supreme Court have limited the options the states who continue to ban same-sex marriage have to defend those prohibitions. If gay couples are kept from marrying because of state-sanctioned “animus” — an intent to deny certain people their rights — there is little escaping a constitutional violation. As a result, the defenders of gay marriage bans had to come up with a new argument to justify the bans.
“[T]he State’s whole point is that we’re not drawing distinctions based on the identity, the orientation, or the choices of anyone,” John J. Bursch, the solicitor general of Michigan, said during the oral arguments in the case, Obergefell v. Hodges. “The State has drawn lines, the way the government has always done, to solve a specific problem. It’s not meant to exclude.”
The “problem” that bans on same-sex marriage were solving, in Bursh’s view, was keeping biological parents attached to their children. How allowing gay couples to marry threatened that attachment puzzled even some of the justices — Justice Elena Kagan called the reasoning “inexplicable.” But even more bewildering, to longtime observers of the issue, is how divorced such logic was from the original motivation for the bans.
“The states’ arguments don’t pass the straight face test, no pun intended,” Judith Schaeffer, vice president of Constitutional Accountability Center, a D.C.-based legal organization, said in an interview with TPM. “These are ridiculous arguments that are being made to cover up the fact that these discriminatory laws are motivated by a desire to keep gay people out of this important legal relationship.”
To say same-sex marriage bans were never meant to “exclude” anyone is to ignore years of anti-gay sentiments — vitriolic posters and inflammatory commentary — not to mention the comments made by elected officials when defending their opposition to same-sex marriage and enacting gay marriage bans.
Texas passed its constitutional amendment banning same-sex marriage ten years ago, two years and one legislative session after passing a state Defense of Marriage Act. That meant that same-sex marriage was already illegal in the state of Texas, but the Lege wanted to make it even more illegal, and virtually impossible to overturn legislatively since a one-third minority in either chamber would be able to block it going forward. First it needed to be ratified via referendum, though, and that’s where some of the more colorful arguments in favor of the amendment took place. Looking through my archives from 2005, I spent most of my time following the folks who were working against this awful amendment, but I did link to a pair of op-eds in the Chronicle on the subject. The op-ed in favor of passing the anti-gay marriage amendment is worth your time to read. I have a hard time imagining anything like it, with its condescending and frankly insulting attitude towards same gay people in general and same sex couples in particular, would be deemed acceptable for print in a mainstream publication. I’m not going to quote any of it here because I want to encourage you to click the link and see it for yourself. We’ve come a long way in a short time, but we shouldn’t forget where we once were, and we surely shouldn’t let the people who continue to stand in our way rewrite history.