As long as two people love each other, I don’t think God cares whether they both have the same “hoo-hoo” or “ha-ha.” – Marge Simpson
Same-sex marriage is likely to be on the ballot again in Ohio. FreedomOhio, a group pushing to repeal the 2004 Amendment to the Ohio Constitution that prohibited same-sex marriage, claim that they are well on their way to putting the issue on the 2013 ballot. This is good news – momentum is clearly on the side of the proponents of marriage equality, and by adding Greg Schultz, former director of President Barack Obama’s Ohio re-election campaign, to the team, the group has shown that this is a serious effort.
Which makes the brief filed this week in the United States Supreme Court all the more amazing.
Attorneys David Boies and Ted Olson – who were on opposite sides in the 2000 Bush v. Gore case, have worked together to overturn the California ballot initiative that outlawed same-sex marriage. The case is now before the United States Supreme Court. Argument is scheduled for March 26 – but briefs are being filed right now.
Instead of making narrow, legalistic, arguments, the brief attacks head-on the idea that marriage between a man and a woman is somehow unique and deserving of special protection by the state. Michigan, for example, argued that “No other relationship is like that of the marriage of one man and one woman. Its distinct attributes make it uniquely ordered to the procreation and education of children . . .” Nineteen other states (but not Ohio!) submitted a brief arguing that “a state may retionally confer civil marriage on one man and one woman in order to encourage the couple to stay together for the sake of any children that their sexual union may create.” (All the briefs are available at Scotusblog.)
In response, Boies and Olson write that opponents of gay marriage “do not even mention the word ‘love’” and that they “seem to have no understanding of the privacy, liberty, and associational values that underlie” marriage. These values include “emotional bonding, societal commitment, and cultural status expressed by the institution of marriage.” Instead, the brief argues, opponents of gay marriage propose a “ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to ‘responsible’ procreation.”
The bottom line:
The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships—their love—of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. [Opponents of gay marriage] have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right. They have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry. . . . The unmistakable purpose and effect of [banning gay marriage] is to stigmatize gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are “unequal to everyone else,” . . .
We thought that this full-throated defense of the right to marry before the Supreme Court was remarkable. A lawyer who is a member of the Supreme Court bar – the same lawyer who cautioned us not to panic after arguments about rhe Affordable Care Act didn’t go so well – confirmed this belief. He said:
It’s really a courageous brief. Most of the time, lawyers write briefs for the Supreme Court that try to give the court a narrow reason to rule in their favor. In this case, the lawyers could have emphasized technical issues, like standing, or focused on narrow readings of the Court’s precedents. Instead, they come right out and have a whole section of the brief titled, “The right to marry is fundamental for all people.” The brief is inviting the Justices to rule on the broadest possible grounds and to invalidate prohibitions against gay marriage nationwide.
This means that the arguments in this case are likely to be heated and fascinating. In other words, not too lawerly.
One final thought. We think it is interesting and significant that Ohio Attorney General Mike DeWine did not join with 20 other states Attorneys General in filing a brief supporting “traditional marriage.” Is DeWine sticking his finger in the wind, and feeling that the prevailing breeze is against “traditional marriage?” That could make the 2013 election interesting. If you want to get an early read on where the 2013 ballot initiative will go, watch old Republican pros like DeWine and ignore blow-hards like Josh Mandel. If DeWine continues to stay mostly on the sidelines, expect a victory for marriage equality.
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