Why Gay Marriage Opponents Keep Belly-Flopping in Court

Rick Bowmer/AP

Time and again, gay marriage opponents have struck out in court, and time and again, they have reacted with rage, screaming on social media and cable news that biased judges are imposing their liberal agenda. That's easier than admitting the truth: Once gay marriage critics get in front of a judge, they advance arguments that amount to little more than self-contradictory mumbo jumbo.

I don't want to coach these folks on how to succeed, but if they hope to stop gays from marrying, they need a case that has more intellectual heft than "I don't like what those folks do, but don't ask me to tell you why."

They can't reveal their real reason: religion (homophobia is in there for a lot of them, but let's stick with those acting on their faith). God wants, Jesus wants, the Bible says—that's the song outside of court. They also toss in the concept that "traditional marriage" is between a man and a woman—as if the past must always determine the future, a view that would have segregation in place today, tomorrow and forever. But even that belief tends to be advanced by its supporters as biblically derived.

The problem there is that Yahweh v. Sodom is not binding legal precedent. It's a conundrum for gay marriage opponents: The primary motivation driving many of them can't be raised in court. Neither can the second most important: personal distaste for homosexuality. That leaves them scrambling for justifications, with the result that each rationale is sillier than the last.

For a wonderful example, look at the ruling by the United States Court of Appeals for the 9th Circuit in gay marriage cases that named Idaho and Nevada as defendants, which the Supreme Court recently let stand. (Nevada withdrew its briefs before the decision, but state officials remained parties.) The decision, handed down October 7, is a laugh riot. And sometimes that's because the author, Judge Stephen Reinhardt, just recites the defendants' contentions.

Start with the biggest knee-slapper: Gay marriage will turn opposite-sex couples into druggies, alcoholics and philanderers, while also leading them to work too much and take on time-consuming hobbies. Forget that it's irrelevant whether others will react badly to third parties being granted rights. Instead, the appeals court gives the argument the respect it deserves: "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."

That is followed by another head-scratcher from the anti-gay-marriagers: If homosexuals can wed, men will run away from straight marriages. Or couples won't marry at all because marriage will no longer seem important.

What's the logic here? Hold on to your tinfoil hat: Fathers in straight marriages (only fathers, for some reason) will see married lesbians raising children and decide, "Well, I guess kids don't need dads. So I'll be on my way." It is hard to tell what is more disquieting: that the anti-'s dismiss the primacy of paternal love or the idea that fathers are so stupid they'll decide what role they'll play in their children's lives based on what the couple down the street do.

Reinhardt dismissed that argument for what it is—disgusting. "This proposition represents a crass and callous view of parental love and the parental bond that is not worthy of response," he wrote.

This underscores a big problem with the entire "I hate gay marriage for nonreligious reasons" facade: It leads anti-'s to dismiss the two precious, life-affirming experiences of marriage and parenthood as nothing more than a construct imposed by the statehouse. In fact, if some straight couples break up or don't get married because they see gay people wed, well…good! If those people allow the actions of strangers to undermine their lifetime commitment to each other, they never should have married in the first place. At least this would help keep the divorce rate down.

In fact, divorce is the elephant in the room that exposes the hypocrisy of opponents of gay marriage. They trundle out these arguments that allowing gays to marry will hurt straight marriage, while ignoring the fact that divorce is the greatest threat to that institution.

Why don't they combat divorce instead? Probably because evangelical Christians love divorce. They are some of the divorciest Americans out there. Jesus, who said not a word about homosexuality, was quite firm that divorcing and remarrying violated the Ten Commandments, because he considered that adultery. But these religious folks are so busy pointing out splinters in the eyes of others that they ignore the planks in their own.

If anyone doubts evangelicals are hard-core marital abdicators, check out an article earlier this year in Christianity Today headlined "Are Evangelicals Bad for Marriage?" The lead paragraph sums it up: "Evangelicals are more likely to be divorced than the average American—even Americans who claim no religion."

For this reason, arguments against gay marriage relating to the impact on "traditional" marriage should be ignored. Until states put as much effort into stopping divorce—which they will never do—they shouldn't be allowed to suggest gay marriage harms straight marriage. Get rid of divorce and Las Vegas matrimonial chapels and quickie nuptials and marriage reality shows, and then, once the decay in straight marriages is addressed, the anti-'s will have a teeny bit of credibility that they care about "traditional" marriage, instead of just opposing gay weddings.

Reinhardt pointed out this hypocrisy. In his ruling, he maintained that if Idaho and Nevada wanted to preserve same-sex marriage, "they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so."

Before getting to the final absurdities suggested by the anti-gay-marriage bunch, a few observations: Straight alcoholics raise children. So do straight gun nuts who leave loaded weapons lying around. And straight parents who neglect their kids. And straight parents who leave their kids in front of televisions all day. And straight parents who call their children names. And straight parents who let their kids skip school. And straight parents who don't know the names of their kids' friends. And…and…and…

Point being, there are plenty of lousy parents. And no doubt, there are gay people who have the same poor decision-making or parental shortcomings. It has nothing to do with sexual orientation.

With that, on to the biggest justifications presented by the anti-'s: What about the children? The most common argument tends to focus on what the opponents contend are measurable differences between kids raised in gay or straight households, which, they maintain, show straight children have fewer problems later in life.

These arguments have repeatedly been dismissed by the courts as being based on statistical nonsense. But a more important point needs to be raised: So what? Imagine, for a moment, that children in gay households have greater troubles. Are the opponents saying that the state should judge which groups should be allowed to be parents based on their children's performance in life? Teen pregnancy rates—one of the bogus statistics cited by the opponents as being high among children in gay families—are in fact very high among kids who receive abstinence-only education, so should states terminate the parental rights of those who push such teachings? Divorce has been found to be a major factor in teen suicide rates; again, should divorce be outlawed? People with guns in the home have a significantly higher incidence of their children being shot and killed; should they be refused the right to marry?

This argument about statistics regarding children raised in gay households can be accepted only if states apply it to every category of parent. This argument on children in gay marriage is just another Trojan horse used to disguise the real objections that the anti-'s are prohibited from raising in court.

Intellectual consistency is also pretty rare in the opponents' case. For example, Nevada and Idaho argued that children do best when raised in married households, but then maintained that gays should not be allowed to marryeven if they have children because the kids don't do as well. If that seems impossible to reconcile, that's because it is. If the states wanted to make sure kids grow up in households with married parents, then they should be championing gay marriage. After all, unmarried gay parents are already raising untold thousands of kids.

The court opinion goes straight for the jugular on this. "In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada demean same-sex couples and their children. Denying children resources and stigmatizing their families on this basis is illogical and unjust."

The strangeness keeps coming. The states argue that their motivation in opposing gay marriage has nothing to do with the fact that those who might wed are homosexual. No, they say, they are fighting against allowing gays to marry because they can't procreate. The fact that banning gay marriage harms homosexuals "is an incidental effect of, but not the reason for these laws." The state has an interest in making sure as many children as possible are raised by biological parents, they say. And the best way to do that is to ensure that only people who can procreate can marry.

Once again, the opponents are hung by their own laws. Elderly people can't have children. Nor infertile couples. And then there are those who have no desire for children. Yet everywhere, these people are allowed to marry.

Another fact to consider: There are adopted children all around us. According to the Williams Institute, a think tank at the UCLA School of Law, same-sex couples are four times more likely to adopt than their counterparts, and 16 times more likely to raise foster children. Should these kids desperate for a home be denied the chance to live in a married household, which the states contend is the best environment for kids? The appeals court says no, maintaining the states' attempt to argue that marriage is best for kids, but not for kids in gay relationships, "goes off the rails."

What today's opponents might not realize was that religion—and hatred—were also the bases for fighting interracial marriage, involving a theology of race related to the dispersion of Noah's children after the flood. God, it was argued, was the original segregationist, and allowing interracial marriage violated his dictates. As Virginia Judge Leon M. Brazile wrote in 1965, "Almighty God created the races…but for the interference with His arrangement, there would be no cause for such [interracial] marriages…. He did not intend for the races to mix."

Many courts were not always so explicit about the religious reasons for opposing interracial marriage. Instead, they took the same "What about the children?" approach as opponents of gay marriage do. In 1898, for example, Georgia's Supreme Court ruled against interracial marriages because "the offspring of these unnatural connections are generally sickly and effeminate.… They are inferior in physical development and strength to the full blood of either race.… They are productive of evil, and evil only, without an corresponding good."

At some point, the anti-'s are going to have to acknowledge that the tide of change is against them and they will be swept aside, just as the people who tried to stop interracial marriage were swamped. They cannot say that the religious arguments and rationalizations against interracial marriage were unjustified then while raising the same nonsense for other types of couples whose lives they want to control. They need to face facts: Theirs is the same position that those who fought interracial marriage held. History will not look kindly on them. It is time for them to stop.