Sorry. Can't let you get married because straight people won't feel superior any more.
This upcoming Tuesday, the U.S. Supreme Court will hear oral arguments on whether it is constitutional for states to ban same-sex marriage. Kentucky, Michigan, Ohio, and Tennessee have seen their states' marriage equality bans overturned, and they have appealed to the highest court in the hopes of re-instituting discrimination. They will probably not prevail: Justice Kennedy has long been supportive of LGBT rights and provided the decisive swing vote in the 5-4 decision in
United States v. Windsor, which struck down Article 3 of the Defense of Marriage Act. He is widely expected to join with the four liberal justices (Kagan, Ginsburg, Breyer, and Sotomayor) in affirming that lower courts ruled correctly in deeming marriage equality bans unconstitutional.
Justice Kennedy, however, is perceived as having a weakness: abortion. He has voted to strike down only one of the 21 abortion restrictions that have come before the Supreme Court during his tenure, and conservative legal minds are well aware of this tendency. In the Burwell v. Hobby Lobby case, which gave permission to closely held corporations to exempt themselves from federal laws that their owners found objectionable, Kennedy once again provided the swing vote, but this time on behalf of the court's conservative wing. In the oral arguments of that case, Kennedy theorized that a decision on behalf of the government could result in companies being forced to pay for an employee's abortion coverage—and the conservative solicitor arguing the case for the plaintiffs was more than happy to reinforce that perspective.
So what's the next logical step for opponents of same-sex marriage? Why, try to turn the fight over marriage equality into an abortion case, of course—as a group of over 100 conservative legal figures just tried to do. Sure, it's laughable. But the steps required by the theory serve as a very good reminder that the essence of conservatism is the enforcement of the privilege of those it deems superior.
More below the fold.
These conservative legal minds, headed by Gene Schaeer, a former clerk for ultra-conservative Justice Scalia, argue that legalizing same-sex marriage will lead to 900,000 extra abortions over the next 30 years. Here's how they get there:
It goes something like this: same-sex marriage "undermines" traditional marriage, which leads to lower marriage rates. And lower marriage rates mean more abortions, because unmarried women get more abortions than married women do. This represents "a short and simple causal chain that the Supreme Court would be wise not to set in motion," according to Schaerr.
Christopher Ingraham at the
Washington Post does an excellent job of deconstructing this nonsense: Schaerr and his colleagues imply a causal relationship between legality of same-sex marriage and a decline in heterosexual marriage rates, despite there being no solid statistical evidence to back it up. But it's the theory behind the supposed link that deserves more discussion.
It's difficult to summarize dozens of pages of legal brief into a few sentences, but here's the upshot. Restricting marriage to heterosexual couples creates a societal expectation about the purpose of marriage, primarily about procreation. People, but especially men, may not wish to enter into the restrictions of a marital contract—but can be coaxed into it if society, through the bias of law, suggests it as an expectation. If same-sex marriages are allowed, however, it will supposedly prove that marriage is not an institution focused on child-rearing. This, in turn, will result in fewer people feeling the obligation to get married, which will result in more unmarried women, which will result in more abortions.
Ironically, this conservative argument, which claims to champion marriage, actually paints a dim and gruesome view of the institution. A typical traditionalist like Ross Douthat might normally seek to portray marriage as an idealized goal with positive effects on family stability and child-rearing. This logic, however, portrays marriage as an obligation whose value can only be understood in the context of those who are denied access to it.
There's a historical precedent for the idea that the structure of civilization depends on those who have the least access to its benefits. In 1858, Senator James Henry Hammond of South Carolina argued for slavery on the basis of what came to be known as the "Mudsill theory": that because the social order and the advancement of civilization required the existence of lower classes who were unable to participate in society's benefits, it was therefore contrary to the social order and against civilization to reduce economic and racial disparities. The "traditional family" argument against same-sex marriage strikes a very similar theme: if the LGBT community is given access to the same social standing as traditionally privileged people enjoy, then the privileged class upon whom society's advancement depends will no longer be able to keep the ball rolling. Or, failing that, they simply won't be as motivated.
Five years ago, when California's ban on same-sex marriage was being challenged in court, the anti-equality side made a similar argument regarding the deinstitutionalization of marriage. At the time, I wrote:
In his work Black Reconstruction, WEB Dubois coined the term "psychic wages of whiteness" to refer to the tendencies of economically disadvantaged whites to go against their own economic interests in support of policies benefiting wealthier whites and oppressing blacks. They may have been poor and lacking any hope of social mobility in a stratified society, but they were better, dammit, because they were white, and that counted for something.
And now, it seems, the Defendant-Intervenors are seeking to turn the psychic wages of straightness into a legal argument to support Proposition 8 [the ballot initiative that banned same-sex marriage in California in 2008]. They are legitimately arguing that straight people will not get married and have children unless they're the only ones who can. I'm not sure what type of mentality that takes. Maybe Andy Pugno, the lead counsel for the Prop. 8 team, is the type of person who orders milkshakes in front of lactose-intolerant friends, just because he can.
The conservative mindset on marriage must be a difficult one to live with. If society is dependent on so-called traditional marriage, and if the future of traditional marriage is dependent on the psychic wages of having a privilege that others do not, then the future of society is indeed built on a house of cards. With that mindset, they should view 900,000 abortions as the least of their problems.