Thursday, September 23, 2010

Prop 8 Update: Marriage Defense Brief

And so the Prop 8 saga continues.

I read through the recently-filed "marriage defense" Prop 8 brief (PDF), in which the private initiative group that put Prop 8 on the ballot is claiming to have standing to appeal, and was tempted to briefly summarize the 134-page document with the phrase same shit, different day.

But that would have been only marginally accurate.

It is distinct from much anti-equality argumentation, especially of the amateur sort, in that overt anti-gay animus has been sterilized from it. Indeed, the brief attempts to present an American society, certainly a California, that is nearly utopian in its lack of animus toward LGBT people and same-sex couples. In the place of the anti-gay sentiments that polite folks don't say in mixed company is a golly-gee-whiz benign-looking heterocentrism in which the existence, let alone the needs, of same-sex couples and families are largely invisible and unstated. It's not that society made marriage for purposes of excluding same-sex couples, the argument goes, it's just that neither society nor same-sex couples need same-sex marriage.

For, once again, the big claim about the One Big True Purpose of marriage is echoed as:

"Because only sexual relationships between men and women can produce children, such relationships have the potential to further—or harm—this interest in a way, and to an extent, that other types of relationships do not. By retaining the traditional definition of marriage, California preserves the abiding link between that institution and this traditional purpose, a purpose that still serves vital interests that are uniquely implicated by male-female relationships. And by providing special recognition and encouragement to committed opposite-sex relationships, Proposition 8 seeks to channel potentially procreative conduct into relationships where that conduct is likely to further, rather than harm, society’s interest in responsible procreation and childrearing."

Missing from the brief are answers to a few questions.

The brief calls Judge Walker's inference of anti-gay animus a "defamation" of the 7 million voters who voted for Prop 8, but how many of these 7 million voters can articulate the above One Big True Purpose of marriage? (Probably not this guy).

If we accept as true the proposition that marriage's one big true purpose is about channeling potentially procreative conduct into male-female relationships, why do we also provide heterosexual married couples special legal benefits, rights, and privileges that are not associated with procreation? Doesn't that send a troubling message that marriage is about something other than procreation? How does banning same-sex partners from the receipt of Social Security spouse benefits impact the channeling of heterosexual procreation?

Is responsible procreation/childrearing marriage's "central concern" even though it is now considered "rude" to assume heterosexual newlyweds are going to procreate and that many heterosexual married couples engage in procreative sex with non-spouses while remaining legally married to others solely for the benefits marriage provides? Shouldn't we be "defending" marriage on these heterosexual couples' backs as well as on the backs of same-sex couples? Or, are measures that impact the lives of heterosexuals in any tangible way by definition too "Orwellian" to take?

In other news, totally awesome that the brief used the statements of President Obama, who opposes marriage equality, multiple times to support an anti-equality agenda. HOPEYCHANGEY!

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