Defenders of Proposition 8 argue that it is reasonable for California to proceed with caution when changing such a basic social institution as marriage. (p. 48) In my view, a desire to proceed with caution is one good reason, among others, that many Californians had in mind when voting to repeal the judicial construction of California’s constitution to create a right to same-sex marriage.
The plaintiffs’ lawyers in Hollingsworth v. Perry reject this reason. They assert, among other things, that “[i]t cannot be the law that public concern about equal treatment itself can justify a denial of equal treatment.” Their authority for this exceedingly general proposition is Cooper v. Aaron. If the law allowed concern for equal treatment to justify denial of equal treatment, they argue, “then in Little Rock in 1958, the ‘drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school “off limits” to colored students’ itself could have been enough to justify the continuation of segregation. Cooper v. Aaron, 358 U.S. 1, 9 (1958).” (p. 48)
That’s one way of looking at things, I suppose. Asserting that society should proceed with caution before rejecting the idea that marriage requires a man and a woman is just like calling out the troops to prevent black kids from attending school with white kids. I’ve never made that connection before. But the argument is just one step removed from equating (a) the claim that marriage requires a man and a woman, with (b) the claim that a “Negro woman” should not marry a “white man.” Loving v. Virginia. And that equation has been a staple of arguments for “marriage equality” for a long time.
I hope that the Supreme Court of the United States can appreciate distinctions that plaintiffs’ lawyers apparently cannot.