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.
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