The New York Times account of arguments at the 6th U.S. Circuit Court of Appeals on multiple challenges to same-sex marriage bans wasn’t heartening to supporters of marriage equality. Two Republican judges on the three-judge panel seem cool as a general matter towards equality.
Why no wait for the democratic process to run its course, said one. Imagine where Dixie would be today if judges had adopted that reasoning in the 1960s. Separate water fountains, most likely is where we’d still be in Mississippi and other locales, perhaps including Arkansas.
But, in a sense, the judges reflect the essence of the issue. There really is no constitutional or other legal defense of discrimination against gay couples except the conventional view now in rapid decline — that’s just how we prefer to do things.
The lack of sound arguments except a preference for the status quo is reflected in the desperation of the legal arguments:
Asked by Judge Daughtrey to explain why barring gay men and lesbians from marrying served this state interest, Leigh Gross Latherow, a private lawyer hired by Kentucky, said that “same-sex couples cannot procreate” and that only heterosexual couples, “who can procreate and we believe do procreate,” should receive the state-sponsored benefit of legal marriage.
I leave to you how many people would be left without marital benefits should such a legal view be strictly enforced.