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Alaska actually wants to use the Jim Crow approach in defending its gay marriage ban

Alaska actually wants to use the Jim Crow approach in defending its gay marriage ban
Alaska, wanting to uphold its gay marriage ban, argues that it is the right of the state's residents, not the courts, to set marriage laws. (Thomas James / For The Times)

States that try to defend their bans on same-sex marriage have a couple of stock arguments that they tend to fall back on. One is that gay marriage harms traditional heterosexual marriage, an assertion that failed in California's Proposition 8 trial and elsewhere because even the defendants couldn't come up with a single example or explanation to back up that canard.

There's always the claim that children are best raised by married, heterosexual parents, which not only lacks clear evidence, but more importantly, is at complete odds with societal reality. Lack of marriage rights doesn't keep gay and lesbian couples from having or adopting children; it only keeps their families from having the protections and esteem conferred on other families. And no one stops other couples from marrying based on whether they would make ideal parents. It's mind-boggling to contemplate all the people who wouldn't qualify.

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A corollary to both those arguments is that states have an interest in maintaining and growing their birth rates, and same-sex couples cannot reproduce. Kentucky is one of the states that tried this awkward defense. But, again, same-sex couples do have children, whether through adoption or by surrogate or artificial insemination. And, again, the more obvious response: The state isn't going to produce more people by denying gay and lesbian couples the right to marry. They're not going to turn heterosexual and settle down in traditional male-female marriages. Not to mention that elderly couples or infertile couples or those simply uninterested in having children are not kept from marrying.

Now Alaska, no doubt seeing how fruitless these arguments have been in court, is using a different  defense, one that reaches back to the era when states fought to keep interracial couples from marrying: It is simply the right of the state's residents, not the courts, to set marriage laws, the state contends, according to the Associated Press.

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In a filing Friday, the state argued:  "The State of Alaska does not dispute that the residents of individual states have the right to change their marriage laws. ... However, the State urges that residents of Alaska possess the same fundamental right to retain the traditional definition of marriage. This basic premise of democratic government should not be usurped by the judiciary absent compelling circumstances which the State respectfully urges are not present in this case."

Give Alaska points of a sort for not following the crowd in its argument to save its same-sex marriage ban; instead, it reached back to the arguments of the Jim Crow 1950s. The only problem is that, as with interracial marriage and other racist laws decades ago, the courts do have compelling circumstances before them: Gay-marriage bans are discriminatory. They single out one segment of the population to be officially denied the respect and rights conferred on others, and they do it without a valid reason. "People in our state wanted to discriminate" is not a strong defense of unconstitutional discrimination.

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