July 4, 2013
Column #1,662
Will The Supreme Court Reconsider?
By Mike McManus

A “Motion To Reconsider” the Supreme Court cases on same-sex marriage ought to be filed in the next two weeks with a new argument that “Gay marriage destroys equality between men and women,” asserts David Usher, President of the Center for Marriage Policy.

Gays won their cases arguing equality – that homosexuals and lesbians ought to have an equal right to marry each other as heterosexuals. Traditionalists failed to even file a counter argument on grounds of equality. However it may not too late to do so.

“Gay marriage destroys equality between men and women,” Usher argues. “It establishes three classes of marriage with vastly different reproductive, social, political, economic rights and liabilities – depending solely on the sexes of the participants.”

Marriages between two women get one major advantage that is denied to heterosexual couples and male-male unions – the partnership of government. Some female unions will bear children by men “outside the marriage,” which makes them eligible for Medicaid, welfare, food stamps, the Earned Income Tax Credit, housing and day care subsidies, etc. The Heritage Foundation estimated the value of these benefits at $20,000 per year in 2004.

Some of those children were conceived when women were previously married. Others will tell men they “are using birth control when they are not. Entrapped men become third parties to these marriages by conscription, but get nothing in return,” argues Usher. Certainly, they have no access to their own children but must pay child support.

“The welfare state is an automatic statutory third party economically supporting these marriage contracts by welfare entitlements and child support recoupments. The Supreme Court cannot explain away the unconstitutionality of same-sex marriage when the welfare state becomes an automatic and unnatural statutory third party provider…extracting substantial income from taxpayers and entrapped men that other marriages cannot benefit from.”

In traditional marriages children are supported by their parents without government involvement. Therefore, they are economically disadvantaged compared to female-female unions because they cannot draw large income from the state.

“Marriages between two men are destined to be the marital underclass,” Usher argues. Many will have to pay child support without seeing their children. In Massachusetts at least two-thirds of same-sex marriages are between women due to government benefits, though gays outnumber lesbians by 3-1.

The harm of same-sex marriage is substantial. Usher is right that children raised in father-absent homes “have between 400% and 1,800% higher rates of problems such as illegitimacy, suicide, ADHD, incarceration and are far less likely to finish high school.”

By contrast, heterosexual marriage “harnesses two very different sexes to form one human race working cooperatively to naturally build nations, economy and raise children,” Usher asserts. “It guarantees equal social economic, parental and political rights to all citizens regardless of sex. To dismantle the historic equal rights institution of heterosexual marriage is to dismantle the Constitution and the nation.”

This case for equality was missing in the arguments before the Supreme Court. It could have countered the arguments of the left for same-sex marriage as giving gays equal rights.

Can it be raised at this time, as Usher alleges?

No, says Kevin Snider, chief counsel of Pacific Justice Institute (PJI), which was involved in the Prop 8 case in which 7 million Californians voted to limit marriage to one man and one woman. “David Usher’s theory has no chance to be heard because he has no legal standing. The Attorney General decided not to defend Prop 8 in court, so nobody gets a chance to defend it, which is extremely troubling because it takes away the people’s rights at the ballot box.”

PJI filed a petition in the California Supreme Court to force the Attorney General to defend Prop 8. It did not succeed, and the U.S. Supreme Court refused to hear arguments from Prop 8 proponents, because they lacked standing that only the Attorney General possessed. Snider hopes that ruling is challenged: “We should be allowed to stand in the shoes of the government when officials refused to defend the law.”

I agree. What was outrageous is that the Federal judge who ruled Prop 8 unconstitutional is himself a gay man living with a partner. His failure to withdraw due to his conflict of interest should have prompted the Court to overrule him and validate the public support for traditional marriage.

However, there will now be many cases in which gays challenge state constitutional bans of same-sex marriage. One was filed in Arkansas this week. In such cases, conservatives should take the equality argument on, by asserting that gay marriage creates unequal outcomes – benefitting female-female unions at the expense of all others.