I've been saying for years, and repeatedly, that the best and simplest reason to allow same-sex couples to be "married," each the other's "spouse," under the law is that there's no good reason not to. Many have tried, none successfully, to come up with one, both in conversation and in court filings. They can't, because none exists.
My favorite parts of the various court opinions striking down marriage-discrimination laws and policies, the ones I always read first, are the ones where the courts examine and systematically dismantle every justification the states and special-interest groups can muster in support of what I call marriage exclusivity. (I refer to same-sex marriage opponents as "exclusivists.") Judge Richard Posner's opinion in the Seventh Circuit is still the best. But Ninth Circuit Judge Stephen Reinhardt came up with some choice words as well.
The money quote, I think, is this, on page 21 of the Opinion:
[P]rivate disapproval is a categorically inadequate justification for public injustice.
Pretty strong words. And it really sums up both sides' arguments fairly neatly; after all, the only thing the exclusivists ultimately have is "private disapproval." But I also find it interesting how the court dealt with this assertion by the state:
[T]he states have a compelling interest in sending a message of support for the institution of opposite-sex marriage. They argue that permitting same-sex marriage will seriously undermine this message[.]
(Op. at 5.) "[S]ending a message"? I'm not sure we've seen this one before; a state claiming a "compelling interest in
sending a message". I don't know if any state has ever tried to justify any of its laws, be they discriminatory or otherwise constitutionally suspect, by claiming a governmental interest, let alone a compelling one, in
sending messages.
And that's without even considering what "message" they're claiming a "compelling interest" in "sending" (or, inter alia, to whom that "message" is meant to be "sent"). They, of course, call it a "message of support for the institution of same-sex marriage," but anyone who's not stupid or ideologically blinded knows that "support for the institution of opposite-sex marriage" in this context means support for maintaining the exclusivity of opposite-sex marriage and the superiority of opposite-sex marriage (viz., heterosexuality) -- to the extent it actually means "support for" anything.
It therefore seemed odd to me that the "compelling interest" claimed by the states would not only be couched as "sending a message," but that the specific message would be one that can only be reasonably interpreted as, "Opposite-sex couples are better than same-sex couples." Or, "Straight people are better than gay people." Or, "Being straight is better than being gay." Did the lawyers for the states really think they were going to get this past a federal appellate court? Did they really think a judge would agree that a state has a "compelling interest in sending a message" explicitly saying that it likes some if its citizens better than others?
Of course, like many courts before it, this court was having none of that:
Windsor forbids state action from denoting the inferiority of same-sex couples. ... [It] makes clear that the defendants' explicit desire to express a preference for opposite-sex couples over same-sex couples is a categorically inadequate justification for discrimination. Expressing such a preference is precisely what they may not do.
(Op. at 26 (bold emphasis added; italics in original; citations and internal quotation marks omitted).)
There's more; read the opinion from pages 15-32. As far as the states' other arguments are concerned, there's really nothing new here. Most of it is about "procreative channeling" and the alleged effects that allowing same-sex marriage will have on opposite-sex couples' desire and propensity to marry, all of which are well-established bogus nonsense.
I still find it somewhat amusing and entertaining to watch and listen to exclusivists try to justify exclusivity, and try to do it without coming across as hateful bigots (or as merely homophobic). They're not all hateful bigots and they don't all come across as hateful bigots; in fact the non-hateful, non-bigoted, non-homophobic arguments are that much more interesting and entertaining in their illogic and ineptitude, and in the way court after court has taken them apart piece by disingenuous piece. But even the most sensible and considered legal arguments (e.g., that we should be cautious about significant social change) end up falling apart under scrutiny.
Given the number of proverbial bites at the apple that exclusivists have had in recent years, one would think they'd have come up with something by now that makes sense and doesn't amount to, at best, subjective and unsupportable speculation. Either that or they'd realize that they can't, because again, none exists. I don't expect exclusivists to just give up a fight they have to know by now they can't win. But part of me wishes they'd do a better job, at least in court papers, of trying to convince the rest of us that their concerns are reasonable, legitimate, and constitutionally sound.
One more thing I had to mention. On page 21 of the opinion, in a footnote, referring to Idaho Governor C.L. "Butch" Otter, the Court writes the following:
He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs and rock-and-roll."
Not quite on Posner's level, but close.