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The Same-Sex Marriage Elephant in the U.S. Supreme Court Chamber

by John Spritzler

May 20, 2015

[related articles here and here and and here and video here]

The Supreme Court of the United States has recently heard arguments for and against the Supreme Court declaring state bans on same-sex marriage to be unconstitutional. I wish to point out that, regardless of one's opinion about same-sex marriage, it is undeniable that something very fishy is going on. The lawyer, John J. Bursch who represented four states and who presented to the Supreme Court justices the case for why states should be allowed to ban same-sex marriage, failed to present the most compelling argument against same-sex marriage, one that is in fact the main argument made by organizations that have led the fight against it. Is this fishy or is this fishy?

Fishy yes, but not unexpected. Why? Because the American ruling class that controls the mass (and "alternative") media, and quite possibly also the discourse permitted inside the Supreme Court, has censored from public discourse the most compelling argument (a secular one, in fact) against same-sex marriage. If this argument saw the light of day, it would cause advocates of same-sex marriage to at least respect the other side and realize that it is not motivated by bigotry and hatred of gays any more than foes of sibling marriage are motivated by hatred of siblings. The ruling class is trying to divide-and-rule Americans. It makes each camp on this issue view the other as holding a view so lacking in any merit or reasonableness that its advocates deserve to be held in utter contempt bordering on fear.

What Happened in the Supreme Court?

The Supreme Court's questioning of Bursch (the lawyer defending states banning same-sex marriage), and his responses, are reported here and here. Part of Bursch's case was that, regardless of whether same-sex marriage is a good or bad idea, the decision whether or not to make it legal should be made by the states, not the Supreme Court. But the substantive problem with same-sex marriage was also debated in the Court. The strongest argument that Bursch made against same-sex marriage is reported this way:

Bursch said that the states’ interest in marriage was not to “deny dignity or to give second-class status to anyone. It developed to serve purposes that, by their nature, arise from biology.”

He said the states’ interest in marriage was keeping together men and women to care for the children that they intentionally or accidentally create.

Listen to two people debate same-sex marriage for long enough, and you are bound to hear the question: What harm would it actually bring? How could two strangers getting married impact another person’s life or marriage in any way?

This idea became a recurring theme throughout much of Bursch’s appearance before the justices, as they returned again and again to the concept. And Bursch spent much of his time arguing that there would be  harm if the concept of marriage as being about raising children is eroded. In particular, he warned again and again that consequences would follow if society divided marriage from child-rearing.

“It has to do with a societal understanding of what marriage means,” he said.

This understanding has to do with how couples view their children and their obligations, he argued. “Ideas matter, your honors,” he said.

Bursch provided another hypothetical: If you take two sets of couples with children, and one couple thinks their marriage is about the child while the other thinks it is about their personal feelings and love and commitment, what is to stop the latter couple from separating, causing harm to the child?

This issue is not about the sexuality of the parents, he said, and would be the same if the parents in these cases were gay or straight. “We’re concerned about all the children,” he said.

The Elephant in the Supreme Court Chamber

The elephant in the Supreme Court Chamber was the fact that the strong argument against same-sex marriage--the one advanced by the leaders of the effort to make same-sex marriage illegal (and also advanced in this video by gay men)--was censored, not only by the justices, but by the lawyer opposing same-sex marriage! This made the lawyer's argument one that could be easily dismissed.

The huge weakness in Bursch's argument is this. Bursch spoke about what was good and important about traditional marriage--that it keeps the man and woman together to care for the child they create. But he never explained what is most clearly and undeniably wrong with same-sex marriage in our society where (and this is key!) it is legal to buy sperm from an anonymous donor and create a child who will never know or be known by its biological father (or, analogously, where it is legal to buy an egg and hire a surrogate mother to create a child who will never know and be known by its biological mother.)

Bursch never pointed out that in our culture a marriage certificate constitutes formal social approval to create a child of one's own. The proof of this is the fact that a) there is NO OTHER reason for making sibling marriage illegal and b) we do in fact make it illegal and c) virtually nobody says it should be legal. Bursch never pointed out that the "permission to create a child" meaning of marriage has nothing whatsoever to do with whether the couple wishes or intends to produce a child, any more than the decision to give somebody a driver's license in any way depends on whether the person wishes or intends to drive a motor vehicle. (You can read the record of the court session and see that some of the Supreme Court Justices are totally confused about this point.)

Bursch never pointed out that, furthermore, giving a same-sex couple a marriage license not only gives them formal social approval to produce a child of their own, but also--since the only way such a couple can produce a child is by using third party sperm or a third party egg--that a same-sex marriage license ALSO gives formal social approval to produce a child with anonymously donated sperm or an anonymously donated egg, in which case the child will not know and be known by its biological father (or mother) [the harm caused by this is discussed below]. This is true in our present society and will remain true until new legislation prohibits this practice of anonymous gamete donation. For discussion of what such legislation (which I support) might be, and how it would eliminate the harmfulness of same-sex marriage and make it OK for same-sex marriage to be legal, go here. Had Bursch made this point the justices might have objected that some opposite-sex couples also use donated sperm or a donated egg to conceive. Bursch could then have replied simply that the key difference is that there's no way of knowing that an opposite-sex couple wishing to produce a child will use third party sperm or a third party egg to conceive a child, but in the case of a same-sex couple this is the ONLY way they can conceive a child.

The justices took advantage of Bursch's failure. They asked Bursch, how could two men (or two women) marrying each other harm another couple's marriage or relation with their children in any way? The answer that Bursch could have (should have) given is that the children most harmed by a same-sex couple are not the children of other marriages but the children that the same-sex couple, itself, may produce (with donated sperm or egg) who are at risk of psychological harm due to not knowing and being known by their biological father (or mother, as the case may be.)

Bursch could have cited testimonies from the now-grown-up children of this kind of conception about the harm they suffer from it (as can be found here and here and here and here and here). And Bursch could have cited studies (like this one) about the harm to sperm-donor children from this kind of conception. He could have pointed out that it is well-known, and not even controversial, that many adopted children suffer from not knowing their biological parents (which is no fault of the adopting parents, of course!), for which reason they often go to enormous lengths to find them.

But instead, Bursch never even mentioned children conceived by sperm or egg donation. He merely argued that legalizing same-sex marriage promotes the idea that marriage is not about the welfare of chidren and that this may lead parents to be less concerned about their children's welfare. He offered the fact that the number of children born to unwed parents has sharply risen since the 1970s. As valid as his "same-sex marriage causes marriage to become focused on adults instead of the children" point was (even if the rise of unwed parents hardly proved it) this point is so abstract that the justices confidently rebutted it:

Kagan followed up by saying it is hard to see the connection between “committed same-sex marriages” and how people will act toward their biological children.

So, why did Bursch advance an argument that was so easily dismissed by the justices? It's not as if the strong argument (about the harm to children who do not know and are not known by their biological father or mother) is a big secret. Here's a video of gay men in Ireland making exactly this point. One of the leaders of the movement against same-sex marriage, Maggie Gallagher, makes this point here where she writes:

"Marriage has its own dignity and purpose and its own mission: bringing together male and female so that children can know and be known by, love and be loved by, their own mother and father." [my underline]

Brian Brown, president of the National Organization for Marriage, makes the same point in this video (time point 2:44) of his debate with an advocate of same-sex marriage:

"Two men and two women cannot naturally have their own children. There is a mother and father somewhere. Marriage is the institution that connects that child to both its mother and father."

Censoring the Actual Argument Against Same-sex Marriage Sets Up Opponents of Same-sex Marriage to be Dismissed as Bigots with Only Foolish Arguments

Salon.com used the elephant in the Supreme Court Chamber to write an article titled, "Traditional marriage gets a SCOTUS smackdown: The incomprehensible right-wing logic that's poised to go down in flames," with the following triumphant language:

Yesterday’s Supreme Court argument showed as clearly as anything could have that same-sex marriage will prevail, not only because of the strength of its arguments, but because those arguments meet no resistance: The opposing view has become incomprehensible.

John Bursch, the attorney defending Michigan’s ban on same-sex marriage before the court, argued that the purpose of marriage was “to encourage children to be bonded to their biological mother and father.” And that clearly is an important part of the historical justification for marriage. If our species did not reproduce sexually, we wouldn’t have the institution. But several of the justices pressed him on how same-sex marriage could possibly frustrate that purpose. Bursch explained that “changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment” would lead adults to think “that this relationship is more about adults and not about the kids.” But the causal connection here is doubtful.

Again, one has to wonder why the lawyer supposedly trying to defend his client states' right to ban same-sex marriage, a man hired to represent four states and presumably an intelligent and seasoned lawyer, would fail to make the strongest (and well-known, among those who care to know) case for his clients. Is the answer related to the fact that the mass media have censored the actual case against allowing same-sex marriage when laws allow conception with an anonymous sperm or egg donor? The mass media are controlled by a plutocracy that rules the United States. Might this ruling elite have used its power to ensure that Bursch would not use his strongest argument?

The ruling elite have orchestrated a phony public debate about same-sex marriage, phony because the actual issue--concern for the welfare of children produced by anonymous sperm or egg donation--is censored. The phony debate is designed to prevent the pro-same-sex marriage camp from seeing the truth: that opponents of same-sex marriage are reasonable people with a reasonable concern that one may or may not agree makes same-sex marriage a bad idea, but which has no more to do with hatred of gays or hatred of equality than the law against sibling marriage is about hatred of siblings or hatred of equality. The phony debate portrays opponents of same-sex marriage, on the contrary, as "homophobic" bigots and irrational lunatic Bible nuts. While nobody would dismiss as in any way objectionable Martin Luther King, Jr.'s citing of the Bible as he fought Jim Crow, anybody who cites the Bible as they oppose same-sex marriage is deemed an idiot by the mass media.

The ruling class uses divide-and-rule to control the American public. It has used the same-sex marriage issue to make the NPR-listening demographic view the non-NPR-listening demographic with contempt bordering on fear. It has even persuaded the NPR-listening folks to OPPOSE the idea of democracy, specifically to oppose letting people vote on whether same-sex marriage should be illegal. Thus MassEquality, the main pro-same-sex marriage organization in Massachusetts, proudly opposed letting there be a referenum on the question; it's slogan was, "It's wrong to vote on rights" (cleverly obscuring the fact that the public had never decided that same-sex marriage was a right.)

The ruling class has persuaded the NPR-listening folks that people opposed to same-sex marriage are so beyond the pale of civilized discourse that they should not be allowed to have an equal say in social decisions. When a substantial minority (or bare majority now?) of the population is so fearful of and contemptuous of the rest of the population, the ruling class knows it has little need to worry. It certainly needn't fear a large popular pro-democracy and anti-plutocracy movement uniting ordinary people (no matter what radio station they listen to) and growing strong enough to seriously threaten the power of the ruling class. Maybe this has something to do with the lawyer, Bursch's, ineptitude before the Supreme Court. This is the big elephant in our "living room."

 

 

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