Federal court's gay marriage ruling is fabulous fail


That U.S. District Judge Robert Jones' ruling on a lawsuit against Nevada's constitutional ban on gay marriage will be overturned is almost a certainty.

This is, after all, the 9th U.S. Circuit Court of Appeals, which struck down California's notorious Proposition 8 by saying it "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships as inferior to those of opposite-sex couples." Replace "Proposition 8" with Nevada's Article 1, Section 21, and "California" with "Nevada," and you have the makings of a quick reversal. (The resolution at the U.S. Supreme Court is far less clear, however.)

Among the many good reasons the 9th Circuit should reject Jones' conclusions are the spurious rationales he cites to justify denying the title of "marriage" to gays and lesbians. (The state, via its domestic partnership program, has already extended nearly every legal benefit of marriage to same-sex couples.)

In trying to distinguish between the discrimination plight of gays and that of racial minorities, Jones writes thus: "On the contrary, homosexuality by its nature, whether chosen or not, is a characteristic particularly unlikely to be passed from parent to child in such a way that the effects of past discrimination against one's ancestors will have effects upon oneself." The modern consensus - that being gay is inherent and not a choice - augur toward the protection from discrimination that Jones refused to provide.

Jones noted the Obama administration's refusal to fight for the Defense of Marriage Act in court. "That the homosexual-rights lobby has achieved this indicates that the group has great political power," Jones writes.

But that begs the question: If gays and lesbians are so politically powerful, how is it that they have not reversed the legal discrimination in a majority of states, where laws prevent them from marrying?

Jones notes that gays and lesbians in Nevada have been able to pass laws protecting their interests, including laws "creating outright legal status for homosexual relationships."

But that's just the point: The lawsuit against the state contends that the recognition of gay relationships means the distinction no longer has any meaning, save as a tauntingly elusive goal for gays. "The state's selective bar access to marriage … serves no purpose other than to impose a stigmatizing government label of inferiority upon lesbians and gay men and their relationships and denies plaintiffs equal treatment based on their sexual orientation and sex," the complaint reads.

Next we come to some of the favorite arguments against gay marriage, some enshrined in high court precedent.

First, "although there is a fundamental right to 'marry,' that right consists substantially of the ability to establish a family, raise children, and, in certain contexts, maintain privacy," Jones writes. (So, no marriage for the elderly, or those incapable or unwilling to procreate, then?) Traditional marriage promotes the propagation of children, whereas adoption or in-vitro fertilization accounts for small percentage of births. (So, if minority gays are allowed to marry, straight couples will stop procreating?)

By legalizing same-sex marriage, "it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence, enter into it less frequently." (Really? Straight couples will eschew weddings if the gays get to have theirs?) Traditional marriage has existed for millennia. (In fact, so did polygamy, slavery and an abiding belief in the inferiority of women to men, all of which are repugnant to modern law.)

That the ruling will be overturned at the 9th Circuit is almost certain. That it should be is beyond doubt.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or ssebelius@reviewjournal.com.

 

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