The anti-gay groups are busy coming forward to file their blatantly bigoted briefs with the Supreme Court in order to try and defend anti-gay marriage bigotry. The Family Research Council has filed a brief claiming that lesbians and gays do not deserve nondiscrimination protections. They also claim that, even if they do, the Court should rule against lesbians and gays in these cases challenging Prop 8 and the Defense of Marriage Act because gays can enter into opposite sex marriage.
Apparently, they believe that it is not discrimination against lesbians and gays to bar them from marrying each other. This is discrimination against same-sex couples.
In his concurring opinion in Andersen v. King County, Justice J. M. Johnson noted that the state DOMA “does not distinguish between persons of heterosexual orientation and homosexual orientation,” and identified a recent case in which a man and a woman, both identified as “gay,” entered into a valid opposite-sex marriage. It is apparent, therefore, that the right to enter into a marriage that would be recognized under § 3 of DOMA “is not restricted to (self-identified) heterosexual couples,” but extends to all adults without regard to “their sexual orientation.” Contrary to the understanding of the California Supreme Court, a law that restricts marriage (or the benefits thereof) to opposite-sex couples does not, on its face, discriminate between heterosexuals and homosexuals. The classification in the statute is not between men and women, or between heterosexuals and homosexuals, but between opposite-sex (married) couples and same-sex (married) couples.
Of course, the same argument was made to defend bans on interracial marriage back in the 1960′s. In Perez v. Lippold, it was argued that:
These cases have been analyzed. They have widely divergent factual backgrounds and are
not controlling. Here there is no lack of equal treatment. Sections 60 and 69 of our Civil Code do not discriminate against persons of either the white or Negro races. (Pace v. Alabama, supra, 106 U.S. 583; Jackson v. City and County of Denver, supra, 109 Colo. 196 [124 P.2d 240]; In re Paquet’s Estate, supra, 101 Ore. 393 [200 P. 911].) Each petitioner has the right and the privilege of marrying within his or her own group. The regulation does not rest solely upon a difference in race. The question is not merely one of difference, nor of superiority or inferiority, but of consequence and result. The underlying factors that constitute justification for laws against miscegenation closely parallel those which sustain the validity of prohibitions against incest and incestuous marriages (Pen. Code, § 285; Civ. Code, § 59; 42 C.J.S., Incest, § 1), and bigamy (Pen. Code, § 281; Civ. Code, § 61; Davis v. Beason, supra, 133 U.S. 333; Reynolds v. United States, supra, 98 U.S. 145). Moreover the argument based upon equal protection does not take into proper account the extensive control the state has always exercised over the marriage contract, nor of the further fact that at the very time the Constitution of the United States was being formulated miscegenation was considered inimical to the public good and was frowned upon by the colonies, and continued to be so regarded and prohibited in states having any substantial admixture of population at the time the Fourteenth Amendment was adopted. In view of this fact, and the unanimity of judicial decision sustaining such statutes, it seems impossible to believe that any constitutional guaranty was intended to prohibit this
The FRC also, apparently, argued that DOMA should stand because LGBT Americans have won recent victories in the nation. Unfortunately, that actually is more reason to take down DOMA since Loving v. Virginia established the precedent that, if a couple is married in one jurisdiction that allows it, they are married in all the states and according to the United States government. Apparently, though, the FRC also argued in the Prop 8 case that Prop 8 should remain up because thirty states have banned same-sex marriage. It seems like they are contradicting themselves majorly.