Today, the U.S. Court of Appeals for the Fourth Circuit heard arguments in the marriage equality case Bostic v. Rainey. James Esseks, the director of the ACLU’s LGBT Rights Project, argued on behalf of the class of 14,000 same-sex couples represented by our clients, Joanne Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd. He joined Ted Olson and Virginia Solicitor General in forcefully making the case for marriage equality to the three-judge panel. As all three lawyers eloquently explained, there simply is no justification for denying same-sex couples and their children the equal dignity and legal protections that marriage brings.
The judges also heard from lawyers for the two circuit court clerks who are defending Virginia’s prohibition on marriage for same-sex couples. Their presentations contained no surprises. They continued to make the same tired excuses for Virginia’s refusal to extend basic rights to gay and lesbian couples and their children. These arguments sound feebler every time our opponents repeat them.
The first argument is that the voters of Virginia decided what the definition of marriage should be, and their democratic will should be respected. Of course, Virginia’s democratically elected representatives also prohibited interracial marriage, segregated the public schools, and forced people with disabilities to be sterilized, all of which we now understand to be unconstitutional. The government may not infringe on individual liberties just because a majority of the populace votes to do so. As the U.S. Supreme Court explained over sixty years ago:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.The clerks’ lawyers also tried to persuade the judges that the exclusion of same-sex couples from marriage is all about the children. There are several different versions of this argument – all of them nonsensical. One version says that children are best off with a mother and a father, and that the state may promote this “optimal” type of family. But the overwhelming consensus of social scientists is that children do just as well whether they are raised by two women, two men, or a woman and a man. The research of the handful of “experts” that our opponents trot out in case after case to argue otherwise has been thoroughly discredited. A district court in Michigan, after hearing expert testimony on both sides, carefully reviewed the research and found the primary expert on the anti-equality side to be "entirely unbelievable and not worthy of serious consideration.”
In the absence of any evidence that gay people are not good parents, the anti-equality crowd has come up with an even less plausible rationale. Straight couples are the only people who can “accidentally procreate.” Marriage exists to channel the children who result from unintended pregnancies into stable families with two parents. Since a gay couple will never produce a child “accidentally,” there is no need to encourage them to marry.
Judge Roger Gregory, who has the rare distinction of having been appointed by both a Democratic and a Republican president, effectively called lawyers on the utter incoherence of this position. How could marriage opponents claim to care so much about children, he asked, while depriving thousands of children of same-sex couples in Virginia of the security that comes from having two married parents? Do those children love their parents any less? Are they any less deserving of the “warm and wholesome attributes of marriage”?
In the courtroom today, the hollowness of our opponents’ arguments was glaringly obvious. Outside the courtroom, it is becoming more obvious to more Americans every day. Regardless of the outcome of this case, equality is coming.
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