“Gay Marriage is Here to Stay, even with a conservative court,” says Cato Institute’s Senior Fellow Walter Olson. What he really means is: “Gay marriage has not inconvenienced the legal profession. We won’t be changing gay marriage.”
No-fault divorce did not overly inconvenience the legal profession either. Some lawyers make a lot of money from divorce. That does not mean unilateral divorce is good public policy. The children of divorce did not all “get over it,” as the experts predicted.
Obergefell redefined parenthood in the process of redefining marriage. Parenthood is no longer a natural reality the government merely records. Parenthood is becoming instead, a purely legal construct created by the state. We will need a full generation to know the long-term impact of redefining parenthood. Children who receive falsified birth certificates from the government will one day grow up. They will have opinions of their own about never knowing the identity of one of their parents.
Listen to Mr. Olson’s arguments. (The article is behind a paywall, so I’m summarizing.) My comments are in red.
- Closely fought landmark decisions don’t get overturned when the losing faction becomes the majority. possibly true, but irrelevant to the question of whether genderless marriage is good public policy.
- Upending precedent causes disruption. to whom? Shoulda thoughta that before you redefined marriage…
- More people accept gay marriage than ever before: people won’t view overturning it as worth enduring turmoil. what turmoil? the wills and pensions and tax status issues could be, and mostly were, already handled by state law.
- The social chaos caused by overturning Obergefell would not please President Trump. boo hoo.
- “Cooler heads on the social-conservative side have urged pivoting away from vain attempts to block the transformation in public opinion, in favor of finding an accommodation for religious minorities who object. so what? “cooler heads” = people who don’t inconvenience lawyers.
- The one “somewhat technical case” to test the limits of Obergefell was Pavan v Smith a birth certificate case. The Supreme Court swatted down the Arkansas court that had reservations about falsified birth certificates. In Olson’s approving words, SCOTUS said “We don’t even want to hear your story about this, now go clean up what you did.” This “somewhat technical case” actually goes to the heart of the matter. Does the government have the right to issue falsified birth certificates, just because some adult somewhere asks? Do children have a natural right to know their genetic origins? The Supreme Court in effect said, no, they don’t. The rights of adults to maintain the fiction that two women are both “mothers” take precedence over children’s rights to an accurate birth certificate. The Gay Legal Establishment was ecstatic with this decision, naturally.
- Obergefell has been logistically easy to administer. States know what is expected of them, they’ve done it and life goes on. Nice. This was the line that made it completely clear to me what Olson actually means. The legal profession is not inconvenienced, so it’s all good. Kids who long for their missing parent? Adults who use third party reproduction thinking it will all be fine because the experts say so? Oh, never mind them.
- In the Masterpiece Cakeshop case, even the conservative justices signed on to Kennedy’s language about whether gay persons and gay couples can “be treated a social outcasts.” Gay marriage is not really about the dignity of gay persons. Making the sex of the body socially and legally irrelevant is one of the goals of sex radicals. So is disconnecting parenthood from biology. “Gay marriage” served both purposes. (It is no accident that the sexual radicals moved to the transgender immediately after the redefinition of marriage.) That is what Obergefell is really all about.
Anyone who says that we know “gay marriage is fine because nothing bad has happened yet” is revealing himself as short-sighted, at best, willfully blind at worst.
Walter Olson may be correct that no one has the stomach for a fight over Obergefell. But some of us will never accept the cavalier attitude of today’s legal profession toward the rights of children to their parents. Nor will we accept the tacit claim that the sex of the body ought to be legally and socially irrelevant.