Updated: March 26, 2013 at 1:28 p.m.
This post was written by Hatchet reporter Isabella Gallart
A former George W. Bush administration official and same-sex marriage opponent urged the Supreme Court to leave marriage laws to the states, even brushing off an audience member comparing his stance to Nazism at the GW Law School Monday.
On the eve of two historic Supreme Court cases to decide the fate of gay marriage, Edward Whelan, president of the conservative think tank Ethics and Public Policy Center, tried to stave off arguments that gay marriage should become legal.
The debate, which brought passionate protesters to the Supreme Court’s steps Tuesday, was also heated at the law school Monday. At the end of the two-hour long discussion, one audience member strongly questioned Whelan’s argument that procreation was a social goal of marriage.
“The way that you’re segregating our society by saying that just a man and woman can get married to me is the same argument as, and I’m sorry for using that word, Nazis would segregate societies,” the audience member said.
Whelan defended his side, saying opposition to gay marriage because two men or two women could not procreate “was consensus before it became fashionable to promote this new cause.”
But at the center of the discussion was whether Supreme Court should use “heightened scrutiny” Tuesday while hearing oral arguments for Hollingsworth v. Perry, which will focus on the constitutionality of California’s gay marriage ban, Proposition 8. The court will also hear arguments Wednesday for U.S. v. Windsor, which could take down the 1996 federal Defense of Marriage Act.
In the law school-sponsored panel that was streamed on C-SPAN, Whelan also clashed with Paul M. Smith, a lawyer who argued the monumental gay rights case Lawrence v. Texas in 2003, which struck down sodomy laws.
Smith, who chairs the Supreme Court practice in the D.C. law firm Jenner & Block, compared the hardships of the gay community those faced by women and other minorities in American history. He held that banning gay marriage amounted to discrimination.
“This is a group of people just like racial minorities, just like ethnic minorities, just like women, who have a long history of being kept in oppressive conditions and do not have enough numbers to protect themselves from the majority and for those reasons the case justifies heightened scrutiny,” Smith said.
Whelan argued that the debate should be left out of the courtrooms and in the hands of voters and legislators, saying that Constitution was silent on the “question of same-sex marriage, which leaves the matter to the political process.”
“I have no illusions that my preferences are going to prevail everywhere, but the genius of federalism is that things work out so that it satisfies more people’s interests,” Whelan said.
