William Lucas Walker was disappointed that attorney Charles Cooper couldn’t come up with a single adverse consequence to gay marriage. So he decided to help with a list of five.
You know those unsightly skin tags that start sprouting in your armpit like mushrooms once you turn 40? If it hasn’t happened to you it’s happened to your parents; don’t ask to see them. After personally testing every known method for getting rid of them, I was all set to write a hard-hitting column based upon my findings. Until pressing national concerns intervened, and it became clear to me: the Supreme Court needs my help. (“I’ma Gonna Pop Some Tags” will appear at a later date.)
If you haven’t been paying attention, the top tier of our nation’s judicial branch this week heard oral arguments on the constitutionality of two laws that relate directly to my radical gay-married family (or as I like to think of it, my family) — California’s Proposition 8 and the federal Defense of Marriage Act (DOMA).
Those of you who read this column know my stand on Prop. 8. I’ve never done a column on DOMA because of a fierce belief that writing about acronyms only gives them a false sense of legitimacy. (You can’t have an acronym thinking it’s a word; it’s a slippery slope that can only lead to it suing for the right to be treated as such.) But since it’s an acronym before the court, I’ll make an exception. If you’re unfamiliar, DOMA means that regardless of the fact that Kelly and I married in California before Prop 8 kicked in, the Federal Government refuses to recognize as legally married us or any other homo couple who married in California or in any of the other nine states (plus D.C.) where that sort of thing is currently legal.
From the bench Wednesday Justice Ginsburg, always a fun gal, brilliantly concluded in her sassy, quiet way that separating couples like us from legal recognition — and the over 1,138 federal benefits, rights and privileges it conveys — was like separating the fat from dairy, leaving gay and lesbian couples with a “skim milk marriage.” This only makes me wish I could marry her. Which I think would be skim milk bigamy.
To illustrate what it means to be in a skim milk marriage, let’s examine a real-life hypothetical. If I die before Kelly, under DOMA he has no right to collect my spousal Social Security benefits, as he would be if he wore a bra, which would never happen because he finds that they chafe. Those of you who know Kelly are well aware of his love for exotic and international teas. I buy these for him. Once I’m dead of skin tags, I won’t be able to do this anymore. If Kel’s chromosomes were laid out differently, my Social Security benefits would kick in and cover all his tea needs. But they’re not, so he may be stuck with Lipton. We find this unfair. So I think you know our position on DOMA.
While the high court’s rulings on these controversial issues won’t be announced ’til June, in the wake of this week’s oral arguments the general consensus seems to be that DOMA is done, both as acronym and law. Because, any way you slice it, it’s hard with the whole country watching to justify making an 83-year-old woman pay $363,000 in estate taxes just because her late wife was shy one penis.
Prop 8 proved thornier for the court. So splintered was the bench on this controversy you’d have thought someone had taken a machete to it. Those nine justices were all over the place on Hollingsworth v. Perry, grumpy and skittish as a swarm of horseflies searching for a cow pie to settle on.
Their questions were all over the place: Should straight couples over 55 be denied marriage licenses since they can no longer procreate? When did gay marriage become constitutional? What about the 40,000 children of the gay-marrieds? How can we rule on something that’s been around for less time than cell phones and the Internet? Who the hell is Hollingsworth? Why did we even take this case? Scalia, in a tangent as creepy as it was revealing, even found a way to work in the sexual potency of Strom Thurmond, a senator who’s been dead for ten years.
One question stood out for me, though.
Justice Kagan asked Charles Cooper, the counsel charged with defending Proposition 8’s gay marriage ban, “what harm you see happening … what harm to the institution of marriage or to opposite-sex couples” if gays and lesbians are allowed to marry?
A pretty simple question that cuts to the heart of things. Cooper had to be expecting it. He’s had three years to come up with a better answer than the infamous response he gave at the first trial, three years ago: A long silence followed by, “I don’t know.”
Apparently he still doesn’t.
“Is there any reason you have for excluding them?” Kagan went on. “Could you explain a little bit, just because I did not pick this up from your brief. How does the cause and effect work?”
Cooper parried that this wasn’t the question before the court — his side only had to show that allowing gay marriage would not advance the interests of marriage as a state institution.
“Well then,” jumped in Justice Kennedy, sounding like a man who’d rather be golfing, “are you conceding the point that there is no harm or denigration to traditional opposite-sex couples?”
“No, your Honor, no,” Cooper answered. But when Kennedy pressed, all Cooper came up with was that “redefining marriage will have real-world consequences” and that “it is impossible for anyone to foresee the future accurately enough to know what those real-world consequences would be. And among those real-world consequences, Your Honor, we would suggest are adverse consequences.”
Scalia was pissed. All he needed from this guy were a few crumbs on the record to rule with a clear conscience against the gays. No one’s doubting how he’ll rule; he recently compared homosexual conduct to murder. But a judge can’t do it alone. He needs an attorney to provide him with ammo. “I don’t know why you don’t mention some concrete things,” brayed Scalia. (Like I did about my dead superstud bud Strom.)
But Cooper couldn’t seem to come up with any.
Even James, my 7-year-old son, put down his Beyblades long enough to pipe up, “Seriously, this is the best they’ve got? Where did this guy go to law school, the Internet? Judges need facts, dude. Come on! All you’ve got is ‘it’s impossible for anyone to foresee the future… but we would suggest there are adverse consequences’???”
I’m with James and Scalia on this. It’s the highest court in the land. They need concrete? Give them concrete, if only so we can get this thing settled. I never thought I’d be offering to help the other side, but their guy looked like a dipstick. He’s had how many years to prepare and can’t come up with a single adverse real-world consequence to gay marriage? Here are five off the top of my head.
1. Lower property values. When I moved onto my street 18 years ago, my new neighbors were ecstatic. Nothing guarantees curb appeal like a single gay man. Within weeks I’d ripped out the untended cactus garden and replaced it with a lush, green carpet of clover-like dichondra. I put in a slate front walkway leading to a covered entryway and replaced the Home Depot front door with one I designed myself and had custom built from a solid piece of Honduran mahogany. The matching bench I angled just so under those weeping branches of the Chinese elm I had landscapers put in made for a picturesque, peaceful spot to sit and listen to the fountain gurgling under a trellis dripping with bougainvillea. I even had outdoor lighting put in so that none of this curb appeal went dark at night. Then I met Kelly, we had children, and got married (in that order; I’m Southern). Five years later our curb has no appeal. The dichondra’s dead. Carpooling kids means the fountain no longer gurgles because in two years I haven’t found time to replace the motor. The bench has dry rot and front door hasn’t been restained or sealed since my daughter swallowed her baby teeth. The bulbs in the outdoor lighting burned out long ago, which is a blessing, given the fact that all they’d be illuminating is a barren patch of weeds that make that untended cactus garden look like Eden. The neighbors who once threw our wedding? They don’t even smile anymore.
2. Wrecked Fantasies for Millions of Straight Men. I’m pretty sure that in those states where it’s become law, marriage equality means girl-on-girl fantasies are history for straight guys. How could they not be? Where’s the hot in two women together when there’s a pretty solid chance they’re married? To each other. I’m no expert here; I’ve never understood the appeal for straight men of two women going at it. But I can’t imagine anything bringing all that girl-squared fun to a grinding halt quicker than the moment one of them notices the sheets haven’t been washed even though it’s the other one’s turn to do laundry. Or when the Taco Bell one of them brought home instead of cooking starts repeating on the other. Or when those toddler twins start fighting over who got poop on whose diaper. Based on this evidence alone, I wouldn’t be surprised at a solid 6-3 decision on gay marriage, with all six male justices voting against.
3. The Gay Discount. Sorry, my LGBT brothers and sisters, but in the interest on putting it all out there so the big nine can make a fair and just ruling, I’ve got to pull the curtain back on this one. Starting with Massachusetts back in 2004, in states where gays and lesbians are now allowed to legally wed, it’s become customary for other gays and lesbians to give them a 25 percent courtesy discount on all professional goods and services. This secret price break is sweeping. I’m talking medical fees, clothing, car washes, yard work, cat sitting, palm reading, all of it. Nobody knows how it started, maybe to offset all those federal tax penalties, insurance rules and Social Security losses to DOMA. Even I have to admit the gay discount is insidious and patently unfair, a pretty huge adverse real-world consequence to those folks forced to choose traditional marriage. We all want a fair outcome at this trial. In order to find on the side of justice, the court must know about the gay discount.
4. Intermarriage. No one wants to talk about this, but it’s the inevitable endgame. What’s going to happen when this brand new, unprecedented generation of children — the kids of the gay-marrieds — grow up and start getting hitched? I’ll tell you what. They can’t all marry each other; there will inevitably be intermarriage with the offspring of the straight-marrieds. This could turn out badly. I don’t have a crystal ball, but coming from such different cultures and backgrounds, I don’t see how there can’t be clashes. What happens when the children of traditional families end up exposed through marriage to the sorts of cultural secrets their parents have spent a lifetime trying to shield them from. Like the existence of 2000-thread-count sheets or how the winners on America’s Top Model are really chosen.
5. Global Warming. This one seems obvious, though I’m sure there are overeducated elites who’ll try to use gambits like “scientific theory” to claim there’s no correlation. But anyone with eyes can see the direct link between the birth of the gay rights movement and global warming. Forget the elites. Listen to the preachers on this one. The first worldwide shifts in weather patterns began to be noticed around the time of the Stonewall Riots, as it was predicted in the Book of Mormon. But the undeniable, sharp and measurable spike in global warming has come since 2004, in the nine years since marriage between gay people became legal in Massachusetts. Katrina anyone? Sandy? Melting ice caps? Rush Limbaugh’s persistent sunburn? Real-world consequences.
To those of you who feel I’m betraying our community or doing the opponent’s job for him, I can only quote Scalia and my son. Judges need concrete facts.
Now, can we get on with this thing?
Originally Published on The Huffington Post