Trump nominee Brett Talley seems to have disavowed marriage equality.

Trump Nominee Brett Talley Seems to Have Called Same-Sex Marriage An “Absurd Constitutional Argument”

Trump Nominee Brett Talley Seems to Have Called Same-Sex Marriage An “Absurd Constitutional Argument”

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Nov. 17 2017 4:11 PM

Trump Nominee Brett Talley Seems to Have Called Same-Sex Marriage An “Absurd Constitutional Argument”

Brett Talley
Brett Talley

Matt McClain/The Washington Post via Getty Images

Brett Talley, whom Donald Trump has nominated for a lifetime appointment to the federal judiciary, appears to have expressed a series of bizarre and tendentious opinions on the website TideFans.com. BuzzFeed has reported that Talley seems to have written 16,381 posts over 12 years under the username BamainBoston. He identified himself by linking to a 2014 Washington Post profile of Talley under the subject line, Washington Post Did A Feature On Me. In that profile, Talley declared his personal opposition to same-sex marriage. Five months later, BamainBoston asserted his vehement opposition to constitutional equality for same-sex couples in a series of posts on TideFans.com.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern covers courts and the law for Slate.

“It’s an absurd constitutional argument that the court is going to accept anyway,” BamainBoston wrote in May 2015, addressing the argument, then pending before the Supreme Court, that same-sex couples hold a right to marry under the 14th Amendment. “Can the states have gay marriage? Sure. Does the constitution require it? Of course not.” He later clarified:

[W]hy does the state have to permit gay marriage in the first place? What is the reason that this particular kind of relationship should have those attendant rights? Friendships don’t get them. Your mistress isn’t entitled to your SSI benefits, even if you love her more. What about people who don’t believe in state marriage? Who are in open relationships? Or are in a polygamous relationship where one of the wives is the official state sanctioned one and the others are not to avoid bigamy laws?
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BamainBoston could easily find an answer to this question in Loving v. Virginia, in which the Supreme Court invalidated interracial marriage bans. The court held that marriage is a fundamental right protected by the liberty component of the Due Process Clause. It then explained that, under the Equal Protection Clause, the government may not deprive individuals of fundamental rights on the basis of some arbitrary or invidious classification.

Loving therefore stands for the proposition that states must provide marriage benefits equally to all qualified couples. The only remaining constitutional question is which couples a state may deem to be unqualified. And a month after BamainBoston wrote this post, the Supreme Court ruled that a state may not disqualify a couple from marriage simply because both partners are of the same sex.

When another commenter raised this equal protection challenge, BamainBoston reiterated that, in his view, the government may lawfully impose an absolute ban on same-sex marriages. “I get that two gay men love each other,” he wrote, “but that doesn’t mean that it is an equal protection violation if that love doesn’t come with the same rights as a marriage.”

BamainBoston’s generally cramped conception of the 14th Amendment—and, in particular, his misunderstanding of Loving—bodes poorly for civil rights litigants should Talley be confirmed. But his views on gay people are even more disturbing. BamainBoston’s comparison of same-sex couples to friends and mistresses is deeply offensive, a devaluation of gay relationships that the Supreme Court itself has firmly rejected. These archaic and invidious beliefs would topple the constitutional principles that have secured gay Americans’ right to equal dignity.