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08/23/2011

More than one way to skim a 'Skinner'

by Jeremy Hooper

On the newly-launched (and predictably stock-photo-laden) "Minnesota For Marriage" site, the anti-equality side writes the following:

Screen Shot 2011-08-23 At 12.06.27 Pm
SOURCE: [Minnesota For Marriage]

This is a quote I've seen casually dropped onto a number of "protect marriage" sites, the idea being that SCOTUS has already settled this matter and sided with the modern "protect marriage" movement. So okay, let's look at it.

(1) The claim comes from 1942's SKINNER V. OKLAHOMA decision. Yes, you read that correctly: 1942. As in nearly seven decades ago. As in the time in American history when marriage was still limited in other unfair ways that SCOTUS had yet to remedy. As in a time so different from now that a concurring judge actually uses the word "imbecile."

(2) Skinner V. Oklahoma concerned sterilization, namely its use to punish those who had been multiply convicted of "felonies involving moral turpitude." So the key point here was, absolutely, procreation and, specifically, the forcible removable of one's procreative ability. Unlike modern marriage cases, where same-sex couples' legal recognition has no realistic bearing on anyone's choice to reproduce, the Skinner matter was 100% focused on such an ability. Thus the reason for mentioning human race's survival.

(3) Marriage is mentioned exactly one time in the decision, in the context mentioned above:

Screen Shot 2011-08-23 At 12.22.13 Pm
SOURCE: Skinner [Justia]

Yes, it's true that procreation, in 1942, was almost always linked in the minds of the population to the concept of marriage (and in policies that pretty much demanded it be). But that is the only reason why marriage is mentioned in this way: To speak to the procreation component. This was not a case that dealt with marriage itself.

(4) Ironically, Skinner v. Oklahoma contained a major 14th Amendment/Equal Protection component (as teased in the above snippet) which speaks much more to our side today than it does to our opposition's discriminatory cause. A big concern, then as in now, was whether the state could arbitrarily discriminate against certain kinds of citizens:

Screen Shot 2011-08-23 At 12.23.14 Pm
SOURCE: Skinner [Justia]

Sure, this was talking about the unequal application of offense rather than the unequal application of a good like marriage. But as the prescient court noted: This sort of tiered system has the possibility of being "as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment." I'm pretty sure that if I was part of a group pushing oppressive treatment of gay citizens who seek equal citizenship, I'd be hesitant about reminding anyone of such Fourteenth Amendment rationale!

(5) In the subsequent years, any number of cases have both confirmed marriage's unique role in society and accepted the inadequacies of past limitations applied to the subject, as well as remedied the shortsighted outlooks that had shown disregard for certain citizens' wellbeing -- including LGBT people. If we are to glean takeaways from this 1942 opinion (and I have no problem with that, as far as it goes), then we [a] must look at the context, [b] consider the times, and [c] examine the massive developments that have come after.

That is not what Minnesota For Marriage wants. Minnesota For Marriage wants supporters to believe that the Supreme Court has all but taken a side in the "protect marriage" "culture war." That's just wrong.

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