Part II of: Grand Theft Bonauto?; or, John Bursch & the "dignity" problem

Intro

     This second part of "Grand Theft Bonauto?; or, John Bursch & the 'dignity' problem" (following Part I, and also following "Alito's Obergefell errors/omissions on Plato and gays"), has been a little delayed, partially because it's longer than'd been planned. That length also supports division into parts:

A. Problems of a "Johnny One-Note" Strategy

     We note, first off, that Bursch of Michigan--despite his manifold virtues and accomplishments--used a "one-note", very slender oral litigation strategy, which is likely to invite punishment (say, losing the case) from courts. He said, "But the government's sole interest in these cases isn't about love. It's about binding children to their biological . . . moms and dads if possible[.]" But but but, to say you have a "sole interest" may often be bad in litigation. Eggs in one basket, etc.
     For example, let's say Joe can sue Jim for a) fraud, b) libel, c) assault, and d) spitting on Joe's dog. Dopey Lawyer, who Joe somehow hires, says, "Well, let's just use the last claim, about your dog, ...but not anything else!" Good idea?
     Or imagine a horror movie where the Final Girl is fighting "Jason Krueger" or whomever. She often has to go through multiple death-dealing maneuvers to finally beat the ghoul, e.g., not just a Molotov cocktail, but also a chainsaw, a Louisville Slugger, a pickup truck (to run over Jason K., repeatedly), etc. A "one-note" strategy might not do it.
     Binding children to biological moms/dads is a fine thing, but there are many other interests at stake in same-sex-marriage issues. For example, if biological moms/dads were all that counted, then would adoption be banned? Or might having a female and male parent be important, even if they aren't biological? Etc.

     Recapping/expanding some of Part I: when Justice Kagan said, "..are you saying that recognizing same-sex marriage will impinge upon[,] will harm that State interest in regulating procreation through marriage?", and Justice Ginsburg pressed the point, Bursch responded, "it has to do with the societal understanding of what marriage means." And Justice Sotomayor said, “...even under a rational basis standard, do we accept a feeling?” (See "More Than a Feeling" by the band Boston. ...If the three female Justices had stood up and started a cappella singing that song, this author would've enjoyed it.)
     Justice Breyer later offered the epic, "What's the empirical part of what you just said?" And Bursch didn't offer one. Though various briefs for his side mentioned, e.g., the depressed marriage rates in nations that've adopted same-sex marriage, he didn't mention them--a very strange omission. In his defense, perhaps he was under great stress.

     So why Bursch's overfocus on the "redefining marriage" thing? ...There is an essay/law review article (later a book) called "What Is Marriage?", which has some value but has been grossly overrelied upon by the same-sex-marriage-ban side, some of whom may be intellectually lazy and think citing that book and its ideas--such as how redefining marriage may just dissuade folks from traditional marriage--is enough for an automatic win over the other side. Hasn't worked. (The present author's pre-certiorari brief in Herbert v. Kitchen, the Utah same-sex-marriage case, was the only one that asked for the Court to reject, or delay, certiorari, and the only one the Court listened to: and that brief mentioned specifically the weakness of the "redefining marriage could maybe sorta kinda cause some problems" argument, but the States' attorneys did not seem to learn that lesson.) Also, the fact that that essay opposes same-sex marriage but doesn't mention the word "sodomy" even once, is a surprising omission.
     So what should/could Bursch have done differently? One can speculate, but here are some possibilities below.

B. Legal Jiu-Jitsu: Using the Other Side's Admissions

     ...One good way to litigate includes using admissions by the other side, or by sources that the other side tends to endorse. This was possible here, in that three notable biological differences of same-sex couples from diverse-sex couples (natural fertility/infertility; disease- or injury-proneness of sodomy compared to heterosexual relations; having/not having female and male parents/role models for children) have had natural allies of Petitioners effectively admitting them for a while.
     This author covered that idea in his brief for the cases, but here presents a shortened and updated version, also covering some other issues. (A super-shortened version is in this author's USA Today 4/30/15 letter to the editor, in Do gay marriage bans hurt families?, which rebuts Andrew Koppelman and Ilya Somin’s USA Today article “Gender, the gay marriage fight’s missing piece”.)
     Speaking of gender:

1. Sex discrimination

     Koppelman and Somin said that same-sex-marriage bans discriminate by gender, and offer the example that if Anne can marry Bob, but Charles can’t, that's discrimination. However, Bob and Chuck form a pair, which has different fertility, AIDS-proneness, and mono-gendered characteristics from the bi-gendered pair of Anne + Bob.
     Similarly, just because a wonderful recipe wouldn't work well if it used paprika instead of cinnamon, that doesn't mean that one is "prejudiced against paprika" by not using it in that recipe. (Note that a biracial heterosexual couple wouldn’t have those issues above, infertility etc., so the bogeyman of long-gone interracial-marriage bans is irrelevant as an objection to same-sex-marriage bans.)
     After all, marriage is a long-defined and long-honored social role, not just an individual whim. Saying traditional marriage “discriminates by gender” is like saying that a director of Othello “discriminates” if he doesn't hire a two-foot-tall white woman auditioning to play the magnificent Moor of Venice. (The director could hire her...but is he/she obliged to?)
     And as Ballard v. United States (1946) proclaims, “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both[.]” (Unsurprisingly, plaintiffs’/Petitioners' briefs don’t mention Ballard to the Court.) So, left-of-center types who support gender-desegregated juries, should also want gender-desegregated couples, more on which infra.

     Same-sex-marriage bans may “discriminate”—if at all—in the same way that public bathrooms for men “discriminate” against women; maybe on the surface, but not really in any meaningful sense. But the one way that same-sex marriage arguably does discriminate vis-à-vis gender, is how it treats the children of same-sex couples.
     That is, Brown v. Board of Education (1954) established that segregated upbringings are damaging; and the ACLU has sued about sex-segregated classrooms. How, then, are 18 years of a sex-segregated upbringing with same-sex parents not remotely, conceivably, able to damage children? (As the ACLU should admit, even though it supports Petitioners.) At least, a state’s people should be able to vote on this. (Even assuming that the sex-segregation is much less damaging than the loathsome racial segregation referenced in Brown, still, it may be quite damaging.)
     This author’s own amicus brief notes that even if same-sex-marriage bans somehow cause constitutional damage, by disadvantaging same-sex couples: overturning the bans could do the same thing, e.g., cause constitutional damage by stripping children of either a mother or father through state action. Since same-sex couples can move to another state and marry, but their children can’t easily divorce their parents and get a mom or dad, the adults can avoid damage more easily. Thus, the Court should uphold traditional-marriage laws, since they protect the more vulnerable.
     Since the benefit of having both a mother and a father has been recognized since the Fifth Commandment, “Honor thy father and mother, that thy days may be long in the land”, even the non-religious may see a point in keeping marriage dual-gendered.
     And speaking of dual-genderedness:

2. Gender-diverse parents as serious state interest

     Even those who claim sex-discrimination or some other quasi-suspect classification (e.g., sexual-orientation discrimination, if somehow considered quasi-suspect) occurs re same-sex marriage, must admit that if the laws meet “heightened judicial scrutiny,” they’ll pass. And the same-sex-marriage bans easily do meet that scrutiny, one may argue. For example, under Grutter v. Bollinger (2003), diversity, including gender, is a compelling state interest, enough to pass strict scrutiny, not just heightened/“intermediate” scrutiny.
     It'd be absurd to say that gender diversity in one semester of community college is “compelling,” while 18 full years of being raised by gender-diverse parents is not equally compelling. (Some same-sex-marriage advocates, astonishingly, say it’s not even a rational interest to have gender-diverse parents; this is schizophrenic in the light of Grutter.
     And any wags who ask, “So could the government compel racially diverse marriages?” wouldn’t be accounting for the innumerable number of races—making it impossible to administer compulsory race-diverse marriages—compared with the existence of only two genders.)

     Left-of-center types who like affirmative action, should logically admit that the Grutter diversity rationale can support same-sex-marriage bans.

     And opposition to mandatory legal same-sex marriage does not show “gender stereotyping” either. It doesn't stereotype to say that two men can't breast-feed a child, and that that may hurt the child, see, e.g., Extended breastfeeding linked to higher IQ and income in study. Indeed, if children have “nontraditional-occupation” parents, say, a homemaker father and a Marine Corps sniper mother, that may break down gender stereotypes.

3. Fertility as serious state interest

     Fertility is another compelling state interest: as same-sex-marriage supporter Michael Boucai admitted in a 2012 law-review article, same-sex-marriage bans channel bisexuals to heterosexual marriage, easily affecting the fertility rate. And millions of American bisexuals add up to a big effect on fertility. (The argument that infertile, chaste, or elderly heterosexuals are allowed to marry is irrelevant; are they going to be policed for fertility, chastity, or being too old? See, e.g., this recent article, 65-year-old teacher set to be mother of quadruplets.)

     Jeremy Hooper's "Good As You" article "'Children of gays' lawyer to SCOTUS: Ban same-sex marriage so bisexuals will marry heterosexually" attacks the present author's rationale, calling it "Another unserious idea that is not open for consideration among serious people. A waste of everyone's time." The only problem is that same-sex-marriage-supporting Michael Boucai thought of the idea (as noted in the present author's Obergefell brief), so that Boucai should be attacked, not the present author. (Atheist Nexus also has some criticism, Bis marrying opposite-sex spouses a "compelling state interest"!?, of yours truly over the "channeling bisexuals" argument.)

     Fertility also comes into play in the following consideration:

4. AIDS prevention, and avoiding sodomy-norming, as serious state interest

     Yet another state interest, maybe even compelling, is not norming sodomy as a state-endorsed and state-subsidized practice. This may not be the most happy-time and politically-correct thing to say; but as noted in our previous post "Queer" protesters claim supreme inclusivity for "anal", with said protesters saying “Anal is the most inclusive form of f*cking” and “There is a Future in Sodomy”: if they want to bring up those kinds of topics, then why can't others? (And religion or morals aren't even the issue here, necessarily: the ban on men-who-have-sex-with-men giving blood has a real epidemiological justification, re the spread of AIDS, etc. Cf. this article re "The HIV/AIDS epidemic caused by commercial blood donation in rural Henan Province of China in the early- to mid-1990s".)
     Sodomy can be horrifically dangerous, e.g., a statistically huge vector of HIV dispersion, not only for men (AIDS), but also for women, who have died from the practice called “fisting”. Private, adult, consensual, non-violent, non-commercial sodomy is one thing, protected by Lawrence v. Texas. But for the State to tell the populace, including impressionable young children, that it is a good idea, will tend to promote that kind of behavior, easily impacting fertility and AIDS rates.
     The youth AIDS rate is bad enough, with young gay and bisexual men showing a 22% increase in estimated new HIV infections from 2008 through 2010; but in addition, children raised in same-sex households “should and do seem to grow up more open to homoerotic relationships....[C]hildren of lesbigay parents appear to express a significant increase in homoeroticism”, as pro-same-sex-marriage researchers Judith Stacey and Timothy J. Biblarz candidly observed. (Their honesty is appreciated, in a world where deleterious effects of same-sex marriage are often swept under the rug.)

5. All of the above

     So rather than just putting forward a wafer-thin "Redefining marriage might sorta discourage linking kids to biological parents" rationale, Michigan's attorney might have mentioned all the points above. Again, multiple bases, multiple compelling state interests, as many as reasonably possible, should've been mentioned. If one rationale doesn't work, another might.
     Just bringing them each up briefly wouldn't have taken too much time. It'd have been a better use of Bursch's time than telling Justice Kennedy "I think you're missing my point", or giving Kennedy a long, legally-erroneous lecture on how marriage doesn't actually confer dignity. It was unpleasant to witness that train wreck of an oral argument, and the present author hopes victory can occur for Michigan's side despite it--unlikely as it may be.

C. Miscellaneous questions Bursch could've answered differently

     Besides the framework above (issues of fertility, AIDS, gender-diversity, etc., that Bursch could've brought up), we shall mention some other particulars.
     Justice Ginsburg asked whether a 70-year-old couple should be given a marriage license, occasioning laughter. But what's not funny is that, as noted above, a 65-year-old woman recently gave birth. As medical technology advances, maybe a 70-year-old one will too.
     When Justice Kennedy said, "And -- and under your view, it would be very difficult for same-sex couples to adopt some of these children. I -- I think the argument cuts quite against you", Bursch could've noted that there may be an immense backlog of heterosexual couples waiting to adopt, see, e.g., this article claiming "In the USA, there are approximately two million infertile couples waiting to adopt", and this report, saying "there are 115,000 children in public foster care awaiting adoption", with 115,000 being much smaller than two million. So maybe if same-sex couples couldn't adopt, that might not cause a huge problem.

D. Question 2 snoozefest

     So much for Bursch and the first question in Obergefell. The second question, about recognizing other States' same-sex-marrieds, seemed to produce little sizzle, from accounts this author has read. Indeed, of the hour that Joe Whelan and Doug Hallward-Driemeier (the States' and the plaintiffs' lawyers, respectively), only 50 minutes were used (11:39 a.m.-12:29 p.m.), as the transcript notes. Ouch. So much for taking "the biggest case ever" seriously.
     The argument was even confusing, if judged by Whalen repeatedly saying things like, "I'm not sure if I understood the question correctly, Your Honor." One of the few interesting notes was the Chief Justice saying to D. H.-D.,

     I think your -- your argument is pretty much the exact opposite of the argument of the Petitioners in the prior case. The argument that was presented against them is, you can't do this, we've never done this before, recognized same-sex marriage.
And now you're saying, well, they can't not recognize same-sex marriages because they've never not recognized marriages before that were lawfully performed in other States. . . . You've got to decide one or the other if you win.

     Does that augur well for the States winning at least one of the cases? Time'll tell.

E. The Ireland same-sex-marriage referendum

     There's not enough room to discuss it here, except briefly to say that the Irish court's KAL case around 2006 said that the Irish people should decide same-sex-marriage issues democratically. Since Ireland is a constitutional democracy (as Justice Kagan called America in the oral arguments), presumably we too in the USA deserve a democratic choice.
     (If this author had the time, he wouldn't mind writing a book called something like, “Fifty Shades of Gay Marriage: or, Trusting Each State’s People to Decide”. If Ireland can decide democratically, why can't Idaho?)

F. Lawrence of Homophobia: or, Are There Ways to Agree with Gays on Other Issues besides SSM?

     This section title is an obvious pun on "Lawrence of Arabia" and also Lawrence v. Texas, and asks, inter alia, whether it makes you a """homophobe""" to oppose mandatory national same-sex marriage. If so, then SSM supporters, world-class humanitarian Jimmy Carter and law professor James G. Dwyer, are "homophobes" (click the links to confirm their support for SSM but not for constitutionalizing it), which sounds sort of strange. "Dirty Bigot Jimmy Carter". Hm. (And don't forget, Sandra Day O'Connor, in her Lawrence concurrence, said there are valid reasons to uphold traditional marriage. Is she a "bigot" too?)
     Similarly, Croatia has decriminalized homosexual activity since 1977, 26 years before Lawrence, but bans SSM. (Though there is a "life partnership" for same-sex people; about these Croatian issues, see http://en.wikipedia.org/wiki/LGBT_rights_in_Croatia.) So can we really call Croatians "bigots"?
     What comes closer to homophobia, of course, is that many people on the States' side in Obergefell...also supported Texas' side in Lawrence v. Texas. Whoops. Not a good idea.
     They may've had good intentions, but the idea of arresting gays for sodomy (or anyone for sodomy, though heteros would likely not've been arrested) sounds like something out of Nazi Germany and the pink triangles. And this author wonders whether some of the erroneous, maybe-even-hubristic thinking that led folks to choose the losing side in Lawrence, maybe persisted and made them think they wouldn't have to work hard to do a good, thoughtful job in Obergefell. There has to be some reason that the States have done such a terrible job in the SSM battles, after all.

     However, for people of conscience and open minds, there may well be room for common cause with gays about other issues besides SSM: e.g., illegalizing the abortion of embryos/fetuses who may test positive for either HIV or "gay-indicatory genetic factors", i.e., DNA markers showing the kid will likely be homosexual. There's even a gay pro-life group, PLAGAL.
     Some pro-life folk would shun any dealings with them, "because they're gays", but those really interested in saving the unborn from destruction via gay-selective abortion (which form of abortion resembles race-selective, or gender-selective, abortion, which pro-lifers are trying to illegalize) might want to rethink their position, if they really think gays are too "unclean" to work with. As the saying goes, we're all sinners, all of us.

Outro

     That's it for now; hope it's food for thought.--The next post, or at least a near-future post, will be about something this author actually agrees with Lambda Legal on, and maybe even submitted a brief on the same side as they did. Be well, and stay tuned...