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Gay rights, SCOTUS, and all that


There is great popular interest in the Supreme Court recently, as a result of two cases about gay marriage that were argued in front of the Court in the last two days.  The first case involved the California Supreme Court; namely, an appeal of its decision to declare Proposition Eight (outlawing gay marriage) unconstitutional.  The second case questions the constitutionality of the 1996 federal “Defense of Marriage Act” (DOMA), which banned federal spousal benefits for same sex couples married under state law.  The appellate court has already struck down DOMA.

It appears that the Court will overturn the Defense of Marriage Act, hopefully as a violation of the Fourteenth Amendment’s equal protection clause.  The reason for applying the Fourteenth Amendment was not considered by those who wrote and ratified the amendment because homosexuals were not popularly thought of as a class of people who might be discriminated against.  Therefore, as Antonin Scalia would have it, the Fourteenth Amendment cannot be applied, because it can’t be considered an “original” intent of the writers.

However, over the time since the Fourteenth Amendment was ratified, things have changed.  First, it was 1954 before the Fourteenth Amendment could be said to have been enforced (as applied to color) in some places in this country.  Second, homosexuals have become a much clearer object of discrimination and a much more obvious class of persons in the last fifty years.

The idea that sexual preference is inborn, not learned, has led to a much clearer appreciation of the involuntary, permanent nature of homosexuality.  The notion that one’s sexual preference is learned is no longer popular, nor is it supported by any scientific evidence.  This is expressed in the psychiatric diagnostic manuals: since 1980, homosexuality is no longer classified as a mental disorder.

There has been, at least until recently, a movement that seeks to “treat” homosexuality through a form of psychotherapy.  This movement has made claims of at least some “cures” that are said to be lasting.  Unfortunately, the scientific research has been lacking.  The one author who published a positive paper on this therapy in 2000 has since renounced the conclusions in his report.  The few therapists who claim to treat homosexuality now are religiously motivated.

Therefore, it has, over time, become clear that homosexuals are a class of persons who are, not by choice, identified as different and subject to discrimination.   This makes them eligible for the protections of the Fourteenth Amendment.  In my opinion.

There is likely to be a considerable fog of discussion about state prerogatives in the institution of marriage, and that is where gay rights will lose some momentum.  The Supreme Court may refuse to reconsider the decision of the California Supreme Court on the grounds that gay marriage is a state matter.  This is something of a cop-out because of the Fourteenth Amendment argument noted above, but it is likely to be found suitable by the judges who think “we are moving too fast.”  In other words, the conservative majority isn’t convinced that we should go forward despite strong public opinion.

The Supreme Court considers public opinion carefully when it makes its rulings.  Having no enforcement mechanism to carry out its edicts, the Court depends on the agreement of the executive bodies with its will.  Thus it is not likely to shock the conscience of those who read its rulings.   The conservative wing of the Court has an audience as well, and it has shown a tendency to play to that audience.  Thus, considering everything, the Court will probably refuse to consider either case, leaving intact the appellate court rulings that struck down Proposition Eight and the Defense of Marriage Act.

In my personal opinion, having encountered people of all sexual preferences in medical practice and in social situations, it’s all normal.  Both men and women seem to be born with a preference for intercourse with one gender or the other; there might even be a lobe in the brain that determines sexual preference (and gender identity.)  Whatever you feel is what you feel.  If you’re attracted to someone or something then nothing can change that.  Just try it sometime.

If you’re concerned about whether it’s “natural” to “do that” a review of practices throughout the animal kingdom is revealing.

I think that it is only when you go against your natural preferences that you develop problems; therefore, a person should be free to choose without provoking any discrimination from others.  People have inborn preferences and those preferences should be recognized as primary aspects of one’s sexuality.

There are, potentially, problems with people who have a preference for juveniles as objects of sexual interest.  Regardless of what such individuals may claim, I think that such preferences are abnormal and the result of abnormal influences in the individual’s environment.  A preference for intercourse with minors is not a natural impulse.  In addition, it is theoretically impossible for a minor person to consent to sexual relations with anyone.  Thus, such preferences should be treated and alleviated if possible.  A preference for sexual relations with minors should not be tolerated as a “variation.”

The age at which a person transitions from minor to adult status is controversial.  Whether a person must be sixteen or eighteen to be an adult for purposes of consent to sexual intercourse is open to discussion.  The onset of puberty occasions an ineluctable desire.   This must be fulfilled to confirm one’s identity as a sexual person.  When are we able to consent to the possibility of pregnancy or venereal disease?  We must be educated and know about all of the potential consequences, good and bad, of our decisions.

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