The arguments against marriage equality are falling fast. No one really believes the “marriage is about procreation” argument any more; not even Justice Scalia. Social science research effectively refutes the contention that kids will only flourish in a dual-gender household. Arguments based on religion or morality simpliciter are inadmissible. These points haven’t yet consistently led courts to require marriage equality, but the tide has recently shifted in that direction with decisions by the California and Connecticut Supreme Courts.
The latest (last-ditch?) attempt to stave off equality is effectively captured in the recent oral argument in the marriage equality case before the Iowa Supreme Court. Probably because of the attention on California and “marriage fatigue,” this case hasn’t been highly publicized, but is no less potentially important. About 22 minutes into the video, Polk County assistant attorney Roger Kuhle attempts to defend the exclusion of same-sex couples from marriage this way: Allowing same-sex couples to marry would harm the institution of marriage. He conceded that the harm to marriage wouldn’t be felt immediately, but would take a generation – maybe two! – to have an impact. What is this harm?
Over time, he stated, people would see that the state doesn’t think that kids need to be with their biological parents, so marriage rates would decline. Is there any evidence to support this argument? (No. See below.) Isn’t it more likely that people would see that the state so values stable relationships that it has allowed same-sex couples to marry? And what about the state’s strong support of adoption – and the not irrelevant fact that adoptions are closed in Iowa, meaning that the kids have no right to find their biological parents? Have the adoption laws diminished respect for marriage?
Looking at the “destruction of marriage” argument from the other side, what about the possibility that the continued exclusion of same-sex couples from marriage would signal that the state supports inequality and discrimination, and that such an institution isn’t worth entering?
In their questioning, several of the Iowa justices exposed what I’ve come to see as a fatal weakness in this “destroy the institution of marriage” position of the anti-marriage forces: they elevate highly theoretical, future harm over real, concrete injury.
Here’s the real harm, which the county (understandably) tried to call “theoretical”: the injury to the same-sex couples, and our children, that the ban on their marriages creates every day.
In legal and, I would add, moral terms, there is no contest: Real harms count more than theoretical ones – especially when the speculative harms are contradicted by available evidence: Same-sex relationship recognition in the Scandinavian countries actually seems to have had a positive effect on marriage rates there, according to an authoritative study of the evidence by Darren Spedale and William Eskridge.
Yet the jeremiads continue; according to the state’s attorney, the plaintiffs “say we can destroy marriage to gain equality.” As the states’ arguments have been peeled away by recent decisions and the simples imperatives of logic, justice, and policy, expect to hear this ever-more-desperate and unconvincing rhetoric.
Or worse. Head-scratching absurdities are also increasingly in vogue, as shown by this “what’d he say?” moment from Mr. Kuhle: “There is no ban, there is no exclusion against same-sex marriage.” He really said that, apparently recycling a definitional argument that is as discredited as all home runs hit during the 1990s.
It’s only going to get weirder.