What is the rational basis for laws that deprive gay and lesbian couples of the right to wed? The arguments that have emerged so far — that same-sex marriage is bad for child-rearing and that it damages heterosexual unions — fall apart under the slightest scrutiny. A judge in Massachusetts recognized this in a case involving the federal Defense of Marriage Act; now the judge in the lawsuit against California's Proposition 8 should do the same.
In declaring the federal marriage act unconstitutional last week, U.S. District Judge Joseph Tauro noted that when Congress passed the law in 1996, supporters said it would "encourage responsible procreation and child-rearing" and protect traditional heterosexual marriage. The law recognizes only heterosexual marriage for federal purposes. Supporters of Proposition 8 used almost identical language during the 2008 campaign to ban recognition of same-sex marriage in the state.
In this year's trial on the proposition, however, even its defenders were unable to show that same-sex marriage threatened the traditional institution of marriage. And not only is there ample reason to doubt that the children of gay and lesbian couples are any worse off than those in traditional families, that's not reasonable grounds for denying marriage based on sexual orientation. Many people make less-than-ideal parents. They aren't denied a wedding license because of it.
District Judge Vaughn R. Walker, who is expected to rule in the Proposition 8 case this summer, has been asked to consider the more complicated question of whether homosexuals constitute a "suspect class," or a group of people who have suffered unreasonable discrimination; if he did so, laws that could adversely affect that group would have to meet a stricter level of judicial scrutiny.
But even if Walker does not go that far, Proposition 8 could still be struck down. Tauro, in his opinion on the Defense of Marriage Act last week, wrote that denying marriage to homosexual couples was so clearly a failure to provide equal protection that it qualified as unconstitutional discrimination even without considering the question of a suspect class, because it was based on nothing more substantive than a belief in the immorality of homosexuality.
Tauro referred frequently to a 2003 case in which the U.S. Supreme Court struck down a Texas anti-sodomy law directed solely against gay sex; the decision said: "The fact that a governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law." The lack of a solid justification for laws against same-sex marriage suggests that, like the sodomy law, they're based only on a traditional moral belief. That's why the Supreme Court should reject them.