JUSTICE SCALIA: I’m curious, when - when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?So I guess sexual preference evolved into a sexual orientation, and then a bunch of LGBTQIA activists convinced everyone that there is a gay gene. Funny how the scientists never found that gene. I'll stick to the science, and the Supreme Court is probably reading trends in the polls right now.
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .
MR. OLSON: It was constitutional when we - as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
Anyway, this case caused me to look at an older case, STANLEY v. ILLINOIS, 405 U.S. 645 (1972):
Joan Stanley lived with Peter Stanley intermittently for 18 years, during which time they had three children. 1 When Joan Stanley died, Peter Stanley lost not only her but also his children. Under Illinois law, the children of unwed fathers become wards of the State upon the death of the mother. Accordingly, upon Joan Stanley's death, in a dependency proceeding instituted by the State of Illinois, Stanley's children 2 were declared wards of the State and placed with court-appointed guardians. Stanley appealed, claiming that he had never been shown to be an unfit parent and that since married fathers and unwed mothers could not be deprived of their children without such a showing, he had been deprived of the equal protection of the laws guaranteed him by the Fourteenth Amendment. The Illinois Supreme Court accepted the fact that Stanley's own unfitness had not been established but rejected the equal protection claim, holding that Stanley could properly be separated from his children upon proof of the single fact that he and the dead mother [405 U.S. 645, 647] had not been married. Stanley's actual fitness as a father was irrelevant. In re Stanley, 45 Ill. 2d 132, 256 N. E. 2d 814 (1970).So I guess that Illinois unwed fathers were presumed unfit until 1972. The 5-2 decision sided with the dad, and declared the Illinois law unconstitional as part of a string of illegitimacy cases.
Stanley presses his equal protection claim here. The State continues to respond that unwed fathers are presumed unfit to raise their children and that it is unnecessary to hold individualized hearings to determine whether particular fathers are in fact unfit parents before they are separated from their children. We granted certiorari, 400 U.S. 1020 (1971), to determine whether this method of procedure by presumption could be allowed to stand in light of the fact that Illinois allows married fathers - whether divorced, widowed, or separated - and mothers - even if unwed - the benefit of the presumption that they are fit to raise their children.
The dissent said:
The Illinois Supreme Court correctly held that the State may constitutionally distinguish between unwed fathers and unwed mothers. Here, Illinois' different treatment of the two is part of that State's statutory scheme for protecting the welfare of illegitimate children. In almost all cases, the unwed mother is readily identifiable, generally from hospital records, and alternatively by physicians or others attending the child's birth. Unwed fathers, as a class, are not traditionally quite so easy to identify and locate. Many of them either deny all responsibility or exhibit no interest in the child or its welfare; and, of course, many unwed fathers are simply not aware of their parenthood.This seems quaint today. I wonder anyone on the Supreme Court today will have the guts to say that the govt can create presumptions based on centuries of human experience with homosexuals.
Furthermore, I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male's often casual encounter. This view is reinforced by the observable fact that most unwed mothers exhibit a concern for their offspring either permanently or at least until they are safely placed for adoption, while unwed fathers rarely burden either the mother or the child with their attentions or loyalties. Centuries of human experience buttress this view of the realities of human conditions and suggest that unwed mothers of illegitimate children are generally more dependable protectors of their children than are unwed fathers. While these, like most generalizations, are not without exceptions, they nevertheless provide a sufficient basis to sustain a statutory classification whose objective is not to penalize unwed parents but to further the welfare of illegitimate children in fulfillment of the State's obligations as parens patriae.
Much as I stick up for dads on this blog, I cannot actually agree with this 1972 decision. Common human experience really does tell us that there are differences between moms and dads. The dad could have locked in his parental rights by marriage or adoption. We have had a system of legally recognizing parents for centuries, and the court was irresponsible to tamper with it. The state gave a reasonable justification for its law:
When explaining at oral argument why Illinois does not recognize the unwed father, counsel for the State presented two basic justifications for the statutory definition of "parents" here at issue. First, counsel noted that in the case of a married couple to whom a legitimate child is born, the two biological parents have already "signified their willingness to work together" in caring for the child by entering into the marriage contract; it is manifestly reasonable, therefore, that both of them be recognized as legal parents with rights and responsibilities in connection with the child. There has been no legally cognizable signification of such willingness on the part of unwed parents, however, and "the male and female ... may or may not be willing to work together towards the common end of child rearing." To provide legal recognition to both of them as "parents" would often be "to create two conflicting parties competing for legal control of the child."Yes, it is manifestly reasonable to have a system where the parents voluntarily accept the legal parents rights and responsibilities.
The second basic justification urged upon us by counsel for the State was that, in order to provide for the child's welfare, "it is necessary to impose upon at least one of the parties legal responsibility for the welfare of [the child], and since necessarily the female is present at the birth of the child and identifiable as the mother," the State has selected the unwed mother, rather than the unwed father, as the biological parent with that legal responsibility.
... Counsel replied that, on the contrary, "Illinois encourages him to do so if he will accept the legal responsibility for those children by a formal proceeding comparable to the marriage ceremony, in which he is evidencing through a judicial proceeding his desire to accept legal responsibility for the children."
Women have the chance to voluntarily accept parenthood, as they have the exclusive and unilateral right to make an abortion choice, under the court's decisions. Men may be involuntarily paying child support, and today's system seems designed to create two conflicting parties competing for legal control of the child, with family court judges supervising the best interest of the child (BIOTCh). While the Supreme Court has meddled in family law in the above case and similar cases, it refuses to do anything about the sort of injustices that I regularly describe on this blog, such as the millions of dads who have been cut off from their kids. The US Supreme Court has made a huge mess out of family law, and it is itching to make things worse again with the marriage cases this week.
It's difficult to argue as an equal protection issue. Clearly, public opinion is shifting somewhat in favor of looking at marriage as a civil rights issue. This means the debate is effectively over. Any resistance to gay marriage will soon be painted as coming from fear or hatred.
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