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Last night, Jon Stewart laid into the arguments against same-sex marriage made by the conservative lawyers and Supreme Court Justices in the Prop. 8 and DOMA cases.

But unfortunately for gay marriage opponents, the broad moral argument had been deemed just ten years earlier by this Court to be unconstitutional, thanks to its landmark 2003 case Lawrence v. Texas, in which Justice Anthony Kennedy wrote for the majority that, "we as a nation cannot abide the banning of butt-sex purely on the basis of its putative yucky factor".  And I can assure you that I am not paraphrasing this judicial opinion; that is what he wrote.  Google "butt sex supreme", and I think you will find out what I'm talking about.

Anyway, the point is this.  Kennedy's point was that moral disapproval, in the absence of other harm, could not be the sole basis for a prohibition.  Which is why this week, go-to conservative Supreme Court litigator extraordinaire Mr. Paul Clement argued that the Defense of Marriage Act was not morality-based when it was signed in 1996, but in fact merely an effort to unify federal standards for recognizing marriage licenses.  Just trying to avoid some confusion.  You know, in the same way that we don't in any way have interstate uniformity for driver's licenses, or fishing and hunting licenses, or, oh I don't know, lawyer licenses, or heterosexual marriage licenses, which different states have different age requirements for.

....

PAUL CLEMENT (3/28/2013): The other I would make — but I also eventually want to get around to the animus point — but the other point I would make is, when you look at Congress doing something that is unusual, that deviates from the way they've proceeded in the past, you have to ask, well, was there good reason?
Yeah, I'm gonna cut you off right there, my friend.  That's excellent, beautiful.  Since you're only going to get around to the animus point eventually, perhaps we could go back to 1996 with some kind of crazy time machine, and listen to some of Congress's good reasons for having DOMA.  Let me just reiterate, this is from 1996, not '56.
7/12/1996:

REP. HENRY HYDE, R-IL: Most people don't approve of homosexual conduct.

REP. DAVID FUNDERBURK, R-NC: It is inherently wrong and harmful to individuals, families, and societies.

REP. STEVE BUYER, R-IN: ... an attack upon God's principles ...

REP. BOB BARR, R-GA: The very foundations of our society are in danger of being burned. ... The flames of self-centered morality are licking at the very foundations of our society: the family unit.

"We cannot abide anything licking at the foundation of our units!  (audience laughter turning into applause as Jon continues)  If we allow the licking of our units, they will slowly slide up and down the pillars of our society, ultimately gobbling our morality down to the hilt!  Gagging on our... wait, what are we talking about again?"

Now lest you believe we are cherry-picking floor debate lowlights, highlighting the morality argument, perhaps we will have Justice Kagan read from the 1996 House of Representatives' summary of its deliberations, to see if the writers of the Defense of Marriage Act did so with moral intent.

3/28/2013:

ELENA KAGAN: I'm going to quote from the House Report here — is that "congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."  Is that what happened in 1996?

PAUL CLEMENT: (in somewhat surprised voice) Does the House Report say that?

(audience laughter)

"Ooh, is that what it says?  If it pleases the Court, I'd like to wipe my brow comically now.  Perhaps approach the bench with a collar."

....

ANTONIN SCALIA (3/26/2013): And there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.
May I approach the Grinch — ah, dick — bench?  Bench, bench.  Couple things.  One, there isn't considerable disagreement as to the consequences.  The American Academy of Pediatrics has studied it.  And they say, "there's no relationship between parents' sexual orientation and children's well-being".  Whereas on the opposing side, there's some fucking guy who put out a thoroughly discredited study.  Or as that's known on the right, "conclusive proof".

And second of all, if the new standard for recognizing marriage is whether or not the couple would make good parents, you, Antonin Scalia, should get cable.

(wild audience cheering and applause)

Because it looks like, if I'm not mistaken, the consequences of heterosexual child-rearing are pretty severe.  And those are just the heteros that let people film them.

....

Incredibly adorable woman, heartbroken over the loss of the love of her life, her spouse, in every conceivable way other than in the eyes of the law.  Could the raw emotion and humanity of this wonderful woman's situation move the justices?

I'm just kidding, of course not!

But there is an issue in this case that I think these conservative justices will get hit home with.

ABC NEWS (3/27/2013): When Spyer passed away, she was hit with a $360,000 federal estate tax bill, money she would not have had to pay if she'd been married to man.
Motherfucking injustice!  Done!

You know, the right may not recognize true love, but they sure as hell recognize the heartbreak that is double taxation.

Video and full transcript below the fold.

Down at the United States Supreme Court, where America's top nine justices spent two full days enjoying gay oral.  (audience laughter)

(looks at paper) ... arguments.  They were hearing oral arguments on the Constitutionality of the federal Defense of Marriage Act, and California's Proposition 8 ban on same-sex marriage.

Now you would think that the main arguments against gay marriage by the right would have some measure of moral outrage, your "It ain't naturals!", your "It's Adam and Eve, not Adam and Steve!"  You know, cuz God would only want you to make love to something that had been torn from your own ribcage.  Just common sense.

Although to be fair, it's not like Adam had a lot of options.  I mean, it was either her, or the snake, and, you know.  With the snake, you don't even know what....  All right.

But unfortunately for gay marriage opponents, the broad moral argument had been deemed just ten years earlier by this Court to be unconstitutional, thanks to its landmark 2003 case Lawrence v. Texas, in which Justice Anthony Kennedy wrote for the majority that, "we as a nation cannot abide the banning of butt-sex purely on the basis of its putative yucky factor".  And I can assure you that I am not paraphrasing this judicial opinion; that is what he wrote.  Google "butt sex supreme", and I think you will find out what I'm talking about.

Anyway, the point is this.  Kennedy's point was that moral disapproval, in the absence of other harm, could not be the sole basis for a prohibition.  Which is why this week, go-to conservative Supreme Court litigator extraordinaire Mr. Paul Clement argued that the Defense of Marriage Act was not morality-based when it was signed in 1996, but in fact merely an effort to unify federal standards for recognizing marriage licenses.  Just trying to avoid some confusion.  You know, in the same way that we don't in any way have interstate uniformity for driver's licenses, or fishing and hunting licenses, or, oh I don't know, lawyer licenses, or heterosexual marriage licenses, which different states have different age requirements for.

But anyway, I'll just let Justice Elena Kagan... I'll let her handle it.

ELENA KAGAN (3/28/2013): Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress's judgment was infected by dislike, by fear, by animus, and so forth?
Fascinating question.  Mr. Clement.
PAUL CLEMENT (3/28/2013): The other I would make — but I also eventually want to get around to the animus point — but the other point I would make is, when you look at Congress doing something that is unusual, that deviates from the way they've proceeded in the past, you have to ask, well, was there good reason?
Yeah, I'm gonna cut you off right there, my friend.  That's excellent, beautiful.  Since you're only going to get around to the animus point eventually, perhaps we could go back to 1996 with some kind of crazy time machine, and listen to some of Congress's good reasons for having DOMA.  Let me just reiterate, this is from 1996, not '56.
7/12/1996:

REP. HENRY HYDE, R-IL: Most people don't approve of homosexual conduct.

REP. DAVID FUNDERBURK, R-NC: It is inherently wrong and harmful to individuals, families, and societies.

REP. STEVE BUYER, R-IN: ... an attack upon God's principles ...

REP. BOB BARR, R-GA: The very foundations of our society are in danger of being burned. ... The flames of self-centered morality are licking at the very foundations of our society: the family unit.

"We cannot abide anything licking at the foundation of our units!  (audience laughter turning into applause as Jon continues)  If we allow the licking of our units, they will slowly slide up and down the pillars of our society, ultimately gobbling our morality down to the hilt!  Gagging on our... wait, what are we talking about again?"

Now lest you believe we are cherry-picking floor debate lowlights, highlighting the morality argument, perhaps we will have Justice Kagan read from the 1996 House of Representatives' summary of its deliberations, to see if the writers of the Defense of Marriage Act did so with moral intent.

3/28/2013:

ELENA KAGAN: I'm going to quote from the House Report here — is that "congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."  Is that what happened in 1996?

PAUL CLEMENT: (in somewhat surprised voice) Does the House Report say that?

(audience laughter)

"Ooh, is that what it says?  If it pleases the Court, I'd like to wipe my brow comically now.  Perhaps approach the bench with a collar."

But with moral arguments no longer available to opponents of same-sex marriage, what's left for the conservatives to argue?  Well, let's let Justice Scalia take a crack at it.

ANTONIN SCALIA (3/26/2013): If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples.
Everything sounds fine so far.
ANTONIN SCALIA (3/26/2013): And there's considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.
May I approach the Grinch — ah, dick — bench?  Bench, bench.  Couple things.  One, there isn't considerable disagreement as to the consequences.  The American Academy of Pediatrics has studied it.  And they say, "there's no relationship between parents' sexual orientation and children's well-being".  Whereas on the opposing side, there's some fucking guy who put out a thoroughly discredited study.  Or as that's known on the right, "conclusive proof".

And second of all, if the new standard for recognizing marriage is whether or not the couple would make good parents, you, Antonin Scalia, should get cable.

(wild audience cheering and applause)

Because it looks like, if I'm not mistaken, the consequences of heterosexual child-rearing are pretty severe.  And those are just the heteros that let people film them.

So heterosexuals are allowed to be shitty parents.  What's the next argument?

SAMUEL ALITO (3/26/2013): Same-sex marriage is very new.  I think it was first adopted in The Netherlands in 2000.  So there isn't a lot of data about its effect. ... You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?
(shocked audience laughter)

No.  No, we want you to step in and render a decision based on whether it's right and fair and just under the Constitution, having nothing to do with its "newness" and what you think might happen.  Which by the way, what do you think might happen?  That they'll discover letting two ladies get married is going to rip open a hole in the ozone layer?

And I got news for you.  Gay marriage will definitely cause less national harm than cell phones or the Internet.  (audience applause)

But here's the thing I'm pretty sure you don't have to do.  You don't have to beta test rights.  "Black people have only been here 50 years, I mean, let's see how The Netherlands does with them before we lift the barriers."  (audience applause)

While the legal arguments are clearly fascinating, I wonder if there was a human element in all this that could demystify the issue for these conservative justices.

3/27/2013:

BROOKE BALDWIN: At the heart of this case is the story of these women.  It's a story that spans 40 years.  This is how long Edie Windsor had been with her partner Thea Spyer.

EDITH WINDSOR: When my beautiful, sparkly Thea died four years ago, I was overcome with grief. ... In the midst of my grief, I realized that the federal government was treating us as strangers.

Wow.  Incredibly adorable woman, heartbroken over the loss of the love of her life, her spouse, in every conceivable way other than in the eyes of the law.  Could the raw emotion and humanity of this wonderful woman's situation move the justices?

I'm just kidding, of course not!

But there is an issue in this case that I think these conservative justices will get hit home with.

ABC NEWS (3/27/2013): When Spyer passed away, she was hit with a $360,000 federal estate tax bill, money she would not have had to pay if she'd been married to man.
Motherfucking injustice!  Done!

You know, the right may not recognize true love, but they sure as hell recognize the heartbreak that is double taxation.  We'll be right back.

Jon then looked at how Rupert Murdoch has filed a waiver in order to buy the Los Angeles Times, despite the danger of a media monopoly, as well as his massive ongoing phone hacking scandal.
Meanwhile, Stephen also covered the Supreme Court cases on gay marriage with Slate's Emily Bazelon, who got a second segment as well.
Stephen talked to Dr. Robert Lustig about our unhealthy sugary diets, and Jon talked with author Denise Kiernan about the women who helped make the atomic bomb without knowing it, which went long.  Here's the entire unedited interview in two parts.
Part 1
Part 2

Originally posted to BruinKid on Fri Mar 29, 2013 at 05:00 AM PDT.

Also republished by Electronic America: Progressives Film, music & Arts Group.

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