Supreme Court

Opponents of Marriage Equality Want to Control Straight People

Audrey Bilger at the Ms. blog has an interesting take on yesterday's argument before the Supreme Court in support of Proposition 8:

When opponents of marriage equality talk about "traditional" marriage, they want to roll back the clock on equality between men and women in marriage–hence the fear of "genderless" marriage and their insistence that marriage is a "gendered institution" even though the state does not currently force married couples to play traditional gender roles. If we don't guard against such archaic views of marriage, the state might start requiring pregnant women to marry, forcing men to marry women who can prove paternity and possibly even counting the number of allowed children within marriages.

Some Republicans Come Out in Favor of Same-Sex Marriage

More than 100 prominent Republicans signed an amicus brief last week, urging the U.S. Supreme Court to overturn California’s ban on gay marriage. Almost 300 businesses signed a similar brief asking the court to strike down the Defense of Marriage Act, which defines marriage, for purposes of federal law, as the union of one man and one woman.

The national GOP platform, adopted in August at the Republican National Convention, called for a constitutional amendment echoing the one man, one woman standard. When President Barack Obama instructed his Justice Department not to defend DOMA in court, House Republican leaders authorized spending taxpayer money to do so.

But as the high court prepares to hear arguments in back-to-back cases challenging DOMA and California’s Proposition 8, some big Republican names are asking the court to recognize that gay couples have a constitutional right to wed.

I suspect this just indicates that a few of the more foresighted members of the GOP have realized they need to get ahead of the game or face inevitable defeat, but I’ll take equality however I can get it.

The 300 businesses, on the other hand, may just be seeking good buzz, but I’m inclined to be optimistic and think that they really do want marriage equality. Let’s hope it becomes a trend.

On Indian Land, Criminals Can Get Away With Almost Anything

One of the sticking points on the Violence Against Women Act over the last few months has been the extension of jurisdiction for Native American tribal governments to crimes committed on reservations by non-Indians. This article by Sierra Crane-Murdoch for The Atlantic illustrates some of the challenges officials face when confronting crime on tribal land.

In 1978, the Supreme Court case Oliphant v. Suquamish stripped tribes of the right to arrest and prosecute non-Indians who commit crimes on Indian land. If both victim and perpetrator are non-Indian, a county or state officer must make the arrest. If the perpetrator is non-Indian and the victim an enrolled member, only a federally certified agent has that right. If the opposite is true, a tribal officer can make the arrest, but the case still goes to federal court.

Even if both parties are tribal members, a U.S. attorney often assumes the case, since tribal courts lack the authority to sentence defendants to more than three years in prison. The harshest enforcement tool a tribal officer can legally wield over a non-Indian is a traffic ticket.

Trigger warning for rape on the full article, but it’s worth reading up on the complexities of this problem, which the U.S. government has essentially constructed for itself.

Best Back-Handed Compliment Ever

Last week the Supreme Court heard opening arguments from the defense lawyers for Proposition 8 and the Defense of Marriage Act, who are apparently both making the same argument: that the government may discriminate against gay people by refusing them marriage rights because they are not capable of having babies by accident:

Conservative attorneys did not argue that gays or lesbians engaged in “immoral” behavior or lifestyles. Instead they emphasized what they called the “very real threat” to society posed by opposite-sex couples when they are not bound by the strictures of marriage.

The traditional marriage laws “reflect a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies,” wrote Clement, a solicitor general under President George W. Bush. “Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society.”

I had to read this a couple times before I understood the nature of the argument, which is (I think) that unintended births cost the state more money when out of wedlock than in, so the government is justified in offering the financial incentive of legal marriage exclusively to straight couples, who are the only people able to get pregnant unintentionally.

Saying that gay people are, by their nature, more responsible with their family planning seems like a backwards reason to keep them from getting married, but at least this argument has the merit of not being based on something like religious belief or fuzzy evolutionary concerns. Still, I’d like to see some numbers that actually show how the state benefits financially from incentivizing straight marriage.

Even then, I wouldn’t care, though. The long-term social cost of depriving an entire group of marriage rights disturbs me more than the threat of a little additional government expenditure.