Ethical! Funny! But Stupid: Kentucky’s Risible Same-Sex Marriage Ban Defense.

laughing Scotus

Supreme Court justices deserve to have a good laugh now and then.

Michigan, Ohio, Kentucky, and Tennessee are all defending their legislative bans on gay marriage in briefs before the U. S. Supreme Court. Only one of their legal teams came up with—-or had the guts to include—the novel argument contained in the Bluegrass State’s brief, which explains why a ban on gay marriage does not “discriminate on the basis of sexual orientation”:

Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.

This is in the amusing category of arguments that make technical sense in legal terms—well yes, come to think of it, if you look at it that way, you’ve defined discrimination right out of the case!— but no sense whatever in the real world. Gays can’t marry their intended life partner but heterosexuals can; that’s obviously unequal treatment and constitutes discrimination. The defense deceitfully pretends that the whole reason for the emotional controversy doesn’t exist: “Love? What’s that? We know nothing of this thing you call love!”

These come up all the time when legal teams are brainstorming which theories to pursue in an appellate brief, and are virtually always discarded after some general amusement and admiration for the Clintonian who devised it. There is nothing unethical about including a dubious argument along with better ones in a brief, even a Supreme Court brief: consider the position that carried the day in the Obamacare case, when Chief Justice Roberts adopted a rationale for the individual mandate that the Obama Administration had repeatedly rejected and denied. The problem is that such an off-the-wall argument is risky:

1. It pulls time, attention and consideration from more promising arguments.

2. It makes the client look foolish or unserious to the public.

3.  Worse, it might make the client look foolish to the justices.

4. Some justice might react to it as an insult to his or her intelligence.

More than all of that, however,the argument is not going to work. Can you imagine what the reaction would be if the Supreme Court endorsed gay marriage bans relying on that logic? The argument is a non-starter, so including it in the brief sends a loud and clear message that no appellate lawyer ever wants a judge to hear:

“We got nothin’.”

 

44 thoughts on “Ethical! Funny! But Stupid: Kentucky’s Risible Same-Sex Marriage Ban Defense.

  1. Question: is the phrase “facially neutral” a legal term? I assume it means “on the face of things?” I never heard that before.

  2. I struggled with this a few years back, and finally conceded that no, they are not discriminating based on sexual orientation, because yes, all men whether gay or straight can marry a woman.

    But here’s the kicker: If you want to argue that, then the discrimination becomes based on gender: Men have the ‘right’ to marry women, but not men, and women have the ‘right’ marry men, but not women. Thus men do not have the same rights as women, and women do not have the same rights as men. This is actually a better argument for LGBT groups, because gender is universally a paradigm we don’t allow discrimination for.

  3. Jack, the problem with your position is that the rationale stated by the State of Kentucky is EXACTLY the rationale used in Loving v. Virginia. With respect to a black woman, the law treated white men and black men differently; so, Loving struck down miscegenation laws. While pro same sex marriage people repeatedly try to analogize their case with Loving, Loving does not support them in any way except as a symbol. Not only does Kentucky have a valid legal argument, it has Supreme Court precedent to back up its reasoning.
    -Jut

    • They analogize it with Loving on the grounds that both were Bible-based forms of infringements on the right to the enjoyment of life without justification or compelling state interest. I’ve never thought that Loving would be a controlling precedent…the issues are different.

      That said, the court specifically rejected the specious defense you refer to, writing that the mere fact that a statute is one of equal application does not mean that the statute is exempt from strict scrutiny review. The statutes were clearly drawn upon race-based distinctions, the court said, and it can be counted on to say here that Ky’s prohibition was clearly drawn upon sexual orientation-based distinctions.

      As I said: a non-starter, and moreso becauss of Loving.

  4. Jack: “The statutes were clearly drawn upon race-based distinctions, the court said, and it can be counted on to say here that Ky’s prohibition was clearly drawn upon sexual orientation-based distinctions.”

    Well, this all goes to whether sexual orientation is a protected class. Race was under the 14th Amendment.

    But, it would be hard to say that the statutes were based upon sexual orientation-based distinctions because these statutes largely pre-date the conversation of sexual orientation.

    The traditional qualifications for marriage were: 1) one man and one woman (preventing same sex marriage); 2) who are not married (preventing polygamy); 3) who are both of the age of consent (or majority) (preventing pedophilia or pederasty, or enforcing the ability to contract); and 4) who are not more closely related than the third degree of blood (preventing incest).

    Two problems with this, if you bring these things up, people get upset that “just because I want gay marriage does not mean I want to support NAMBLA or polygamy.” The problem is: the slippery slope is right there and they want to pretend it is not. If you are attracted to children (or your sisters (or both of your sisters)), why does “but we love each other” work for gay people but not the others. They have no good response to that (except probably for the age of majority part; incest and polygamy, though, they got nothing-nothing bu the ICK! factor).

    And the second lie is the way gay marriage and same sex marriage are conflated or used interchangeably. My brother and I owned a house together. Neither of us is gay but we could have gotten married under the “same sex” marriage law, but not a “gay marriage” law (except for that damn restriction on incest!). That sleight of hand is used frequently in these discussions.

    You don’t have to be gay to be in a same sex marriage. If you need the health insurance, the tax deduction, the food stamps, whatever(!), it could be a great scam.

    -Jut

    • Nope. This more of the typical “this isn’t unethical but it could be unethical so it’s unethical” fallacy. There’s no slope at all: not allowing non-consentable children to engage in sexual relationships is a substantial and legitimate state purpose. Not allowing polygamy has a similar legitimate state and societal rational. Not permitting gay marriage does not: it harms nobody—people just think it’s dirty and of course The Big Guy doesn’t like it. Not enough. Moreover, Equal Protection doesn’t just apply to “protected classes” The Constitution guarantees equal treatment under the law top everyone, and the gay marriage prohibitions violate that…the 14th Amendment isn’t needed. Or do you really think that a law prohibiting redheads to work in banks would stand?

      • The Constitution guarantees equal treatment under the law top everyone, and the gay marriage prohibitions violate that…the 14th Amendment isn’t needed. Or do you really think that a law prohibiting redheads to work in banks would stand?

        Explain Baker v. Nelson then.

          • Jack:
            1. Not sure. Family law was traditionally a state issue and the Supremes correctly (if I recall correctly) said, this is not a federal case.
            2. Yes, that and Roe v Wade and Brown v board, and Marbury v Madison. In a Stare Decisis context, 50 years old is actually a good thing, though not determinative.
            3. Not sure. It sounds like Baker was decided on jurisdictional grounds. Plessy was on the merits of equal protection. Not really the same.

            These are not convincing grounds.

            -Jut

            • 1. Obviously wrongly decided on the merits: I assure you that it would never come out this way today. Gay marriage was just considered weird, like interracial marriage once was. judges get confused by “ick” too.

              2. 50 years in social and cultural contexts is an eon.

              3. In Saying that it is like Plessy, I mean that it is an opinion that raised few eyebrows at the time that looks bad in retrospect, because of greater understanding of the issues involved.

              • 1. It was decided on jurisdictional grounds (federal question), it is obviously distinguishable. Come on! YOU can do better than that.
                2. 50 years is an eon! Which is why Baker must fall, Roe v wade is impervious, Marbury is great, plessy was bad, and brown v board was good! What? Rationalize that.
                3. You are sounding more and more like a progressive every day (and not in a good way ( if that is possible). To put a bad face on it, Plessy was government justifying its bad acts; you just want to justify different government control. In that view, you are not that different from Plessy.

                -Jut

                • 1. Again, I couldn’t care less about the procedural issues: the fact is that this was discrimination, and the law would fall today, and pretty decisively. It is also wrong.

                  Roe is a great example of an opinion that can be revealed as as wrong as Dred Scott over time. Plessy WAS bad, and for the core reason stated: separate is inherently unequal—the culture revealed that one as wrong in less than 50 years. You don’t think Brown was good? Your argument is getting obscured is excessive sarcasm.

                  You have to be breathtakingly perverse to argue that allowing a marriage of same sex couples is government control, and forbidding it is less so. What are you thinking?

      • Jack,
        Three points:

        1) I will give you the kids argument. That is the easy one.

        2) Why is “it does not harm anyone” the relevant criteria? That is the mantra in this case, but that is not the indisputable basis upon which all laws are made. Helmet laws, seat belt laws, minimum wage laws, drug laws, zoning codes. I understand that “the harm to be prevented” is an accepted basis for statutory analysis, but it is not the only basis. So, why do you think it applies here?

        3) Okay, let’s assume “harm” is the right standard. I have already conceded children should not be allowed to marry. What exactly is the legitimate state and societal rationale for polygamy or incest? It hurts no one! (I don’t think you can state a good rationale that would distinguish it from same sex marriage. “They’re just ICK-IER! does not count.)

        -Jut

  5. “Love? What’s that? We know nothing of this thing you call love!”

    I know we have always been at war with Eurasia, but can we stop pretending the “gay marriage” issue is about love. I was one of the suckers who supported gay marriage as a libertarian. My theory was that if marriage was what gay people wanted to pursue happiness, then they should be free to do that.

    Gay marriage was sold as a movement about tolerance and love. The argument was “how does who someone chooses to love effect you?” Now that gay marriage is the law of the land, the real purpose is clear. Gay marriage was always just an excuse to establish a legal basis for anti-Christian campaigns.

    Now the left has a legal justification to police, criminalize and sue out of business the people it hates.

    • Right—all those couples I know who are gay and completely apolitical, often Christian, and even conservative just want to be able to sanctify their committed relationship and have it respected like any other because they want to bring down the Christian faiths.

      You can’t be serious.

      Christians have handled this cultural shift, which they didn’t see coming and didn’t take seriously, horribly. Beyond horribly. Their spokespersons are repellent and dishonest, and their propaganda has been despicable. That, and only that, is why this has begun to look like a war against religion.

      • “Right—all those couples I know who are gay and completely apolitical, often Christian, and even conservative just want to be able to sanctify their committed relationship and have it respected like any other because they want to bring down the Christian faiths.”

        You are being completely dishonest. The truth is the majority of people have supported some kind of union for gay people even if it wasn’t called marriage. But the left and gay activists insisted that their unions “had” to be called marriage. They picked a political fight designed to antagonize Christians. Now the same gay groups and leftists are using the legal status of gay marriage to wage lawfare against groups they hate.

        If it really was about gay rights and marriage then lawfare targets wouldn’t all have the same profile (white, orthodox Christian, conservative.) Islam and black Christian churches are generally more hostile to gay marriage and rights but somehow there are never attacks on Islamic businesses. I guess that is just a coincidence.

        • But the left and gay activists insisted that their unions “had” to be called marriage.

          And were completely correct to do so. Calling it anything else illegitimized the union, and was intended to.

          • And were completely correct to do so. Calling it anything else illegitimized the union, and was intended to.

            Right because you wouldn’t want to actually convince your fellow American’s that this radical cultural change was a good idea, The vast majority of Americans wanted to meet gay groups half way. So why not take civil unions and prove to everyone that fears about gay marriage were unjustified?

            I will tell you why, because the totalitarian left wanted a political issue to raise funds and demonize its opponents. It also gave them a legal excuse to police thoughts and persecute individuals, groups and organizations it doesn’t like. But its really about love, Right?

            • Oh, baloney. Gays didn’t want to be stigmatized as freaks who weren’t good enough to have real marriages. “Separate is inherently unequal.” It’s exactly the same principle as Brown. I know as many conservative gays as liberal ones—in fact, more. They aren’t Republicans because of issues like this, which model bigotry.

              • You keep dodging my point. I’m pointing out that broad support for civil unions doesn’t indicate broad anti-gay sentiment in America. So the left had to portray Americans not moving as ideologically fast as they wanted as bigots.

                Wow and it turns out that portraying your political enemies bigots is a great way to raise money. It also gives the left a great chance to play thought police, wage lawfare and wage culture war against its enemies. But you refuse to address this point and the evidence I’ve given to support my claim.

                • The point is that the belief that there is no significant difference or stigma attached to a marriage not worthy of being called a marriage is a narrow misconception based on an inability to see the issue through the eyes of a gay couple. It may not be motivated by bigotry, but it often is, and looks like bigotry to the ones feeling discriminated against. If it were practical to make all marriages a civil union from the government’s perspective and leave it up to church’s whether to “marry” a couple, that would solve the problem (and be absurdly confusing). But if the state is going to define marriage, it can’t define it away from some couples and not others.

                  • You don’t want to respond to my point so let me try another tack.

                    Why am I wrong to be skeptical about the intentions of the left and gay marriage activists?

                    You are arguing that the “one man+ one woman= marriage” definition of marriage is illegitimate, because …love? You might disagree with the definition or want to change it but calling it “stupid” is just ad hominem. This is why I am becoming more and more skeptical of the gay marriage campaign. The argument for gay marriage can be summarized as basically, “its about love.”
                    “I’m not convinced”
                    “Bigot”.

                    The left doesn’t feel the need to honestly argue its case or respect the fact segments of the population aren’t moving as fast as they want. Most people who didn’t support gay marriage, supported civil unions. This seems like a pretty fair compromise to me, if you genuinely want to convince people that a radical change like gay marriage is no threat to the institution. You could have built an extremely broad coalition for that project if you wanted to unite people and integrate gay marriage into the institution. You might have even promoted charity and social harmony between the groups. Or the left could just make it another profitable and divisive campaign in the culture war.

                    Finally I am skeptical of the new phase of the battle for marriage equality. The campaign looks suspiciously like an excuse to play thought police and wage a lawfare campaign against its enemies. But the campaign for “marriage equality” never seems to confront Islamic groups or business, just white, conservative, orthodox Christians. almost like the issue of gay marriage is an excuse to fight the culture war and punish your enemies.

                    So why is my skepticism wrong and how am I misinterpreting the facts?

                    • “Most people who didn’t support gay marriage, supported civil unions. This seems like a pretty fair compromise to me, if you genuinely want to convince people that a radical change like gay marriage is no threat to the institution.”

                      That described me, a few years ago, for exactly your reasoning. Then I discussed it with a two gay friends (“why not take what you can get and live to fight another day?” I said).

                      Their answer: “Because we don’t want to institutionalize the idea that our faux marriage is less than–putting a version of separate but equal into legal cement.” They were clear they’d far rather wait than accept a legal definition skin to half-citizenship. And I came quickly to see it their way–I had no taste for calling them second-class marriages.

                      I think what happened had very little to do with some organized left-wing strategy, and s whole lot to do with straight people thinking about and talking with their gay friends and family members, and concluding as I did, there’s no humane just way of telling one group of people that they could not fully share, in name as well as detail, an important human institution afforded the rest of us.

                      Why do you doubt or disbelieve this narrative?

                    • charlesgreen

                      Their answer: “Because we don’t want to institutionalize the idea that our faux marriage is less than–putting a version of separate but equal into legal cement.” They were clear they’d far rather wait than accept a legal definition skin to half-citizenship. And I came quickly to see it their way–I had no taste for calling them second-class marriages.

                      They didn’t want to, well that totally absolves gay marriage advocates from using honest arguments and trying to convince people with persuasion that they are right. People who disagreed with gay marriage were willing to compromise, they were not. So, the moral high ground goes to the party totally unwilling to compromise?

                      I think what happened had very little to do with some organized left-wing strategy, and s whole lot to do with straight people thinking about and talking with their gay friends and family members, and concluding as I did, there’s no humane just way of telling one group of people that they could not fully share, in name as well as detail, an important human institution afforded the rest of us.

                      Translation: Its about love and equality, no humane person could disagree you bigot.

                      Why do you doubt or disbelieve this narrative?

                      You didn’t address a single reason for skepticism I pointed out . You then made the argument I was mocking as dishonest. You are illustrating my point.

                    • I made no argument. I gave you one counter-example to your argument, namely my own experience, based for me solely on the love and decency principle you dismiss. It was genuine for me, you have zero standing to say otherwise.
                      As to my gay friends, they were perfectly comfortable waiting however long it took for the nation to come around. I fail to see why a preference to wait vs. settle is a moral failing.

                  • I want to be an airplane pilot, I do not have the training but I love to fly. I want to change the definition of pilot to include people like me who love to fly. The government has no business treating me different from someone who has the training. We are both human beings deserving of respect, dignity and the right to fly.

                    All I am asking for is equal treatment and the right to do something I love. There is no humane reason to deny me this right. Anyone who disagrees with me is a bigot.

                    I have your support right?

                    • Terrible analogy. Someone with more time and patience can explain it to you. The short version: Marriage is a legal term that can be defined as the culture and society choose. Flying requires special skills and training. The only qualification for marriage that is material is that two adults are committed to form a family unit that is respected by law.

                    • Only in a world where pilot’s licenses and marriage licenses are fungible.
                      Not in my world!

                    • Completely dishonest and perhaps deliberately missing my point. You try to slip in the definition of marriage as “two adults are committed to form a family unit that is respected by law.” The fact is, marriage was previously defined as one man and one woman.

                      This is a change in the rules that previously governed marriage. An honest debater would admit that they are changing the rules and give their reasons. Then honest people could debate the merits of the rule change.

                      The gay marriage advocates won’t admit that they are changing the rule. They base their argument on love and equality and won’t have an honest debate about the merits of the change. In fact they state that you cannot have any honest opposition to gay marriage. All opposition is bigotry.

                      My analogy points out the obvious flaws in basing the entirety of an argument on an appeal to love and equality. Despite its weakness, this argument is supposed to trump freedom of speech, conscience, association and religion. And anyone who disagrees or even questions this argument is dishonest or a bigot.

                      I supported gay marriage because I believed in tolerance and the principle of live and let live. But gay marriage isn’t about tolerance and it never was. The left and gay activists have no intention of leaving anyone who disagrees with them alone. Attacks on people and groups who disagree with the left and radical gay groups are going to get worse and worse and you are supporting them.

                      Ethical?

                    • Sane. Fair. Respectful. Of course ethical. “Voters” once meant white, male, property owners. We learn, we evolve.There is no agenda, just people. There is no rational, substantive reason to “disagree” with same-sex marriage. The objections are based 100% on either ignorance, bigotry, ancient taboos or foolishness, and none of anyone’s business but the gay couples involved. This, and no other reason, is why they are going down fast, and those who resist just lose credibility.

                    • Jack, I’m shocked to find out that you’re supporting the left and radical gay groups. How long has this been going on?

  6. Can you imagine what the reaction would be if the Supreme Court endorsed gay marriage bans relying on that logic?

    It would mean that, at the Supreme Court level, whether sexual orientation is a suspect classification remains an open question.

      • The definition of marriage predates the concept of sexual orientation. It is not as if the word marriage was invented in 1981 just to oppress homosexuals.

        • “The definition of marriage predates the concept of sexual orientation.”

          Not exactly. The definition of marriage has been a moving target.
          –In my lifetime, interracial marriage was illegal in Virginia.
          –I have not heard, for some years now, “’til death do us part” or “obey thy husband” in the weddings I have attended.
          –In the early 20th century, wives did not have property rights.
          –the dictionary defines polygamy as having multiple wives, which would seem to place it in the category of “marriage.”
          –in fact, coverture (the idea of women losing their rights upon getting married) is a legal concept that has existed for centuries, and has been gradually eroded.
          –And of course the bible refers “a man lying with a man” as early as in Leviticus.

          The take-away is that human societies evolve and change. It just isn’t a static thing.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.