As they prepare to render a potential landmark legal decision on the issue of same-sex “marriage,” the Supreme Court’s justices made clear that their verdict will rest on a few questions:
- Is marriage based on biology or feelings?
- Who should decide whether to redefine an institution that stretches back for “millennia”?
- If justices begin tampering with the historically exclusive definition of marriage as the lifelong union of a man and woman, what would prevent future courts from imposing polygamy, incest, or pedophilia-based “marriage” on the nation?
Mary Bonauto, a Massachusetts lawyer who asked the justices to redefine marriage, began by making high claims on behalf of same-sex “marriage.”
“The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society,” she said.
Chief Justice John Roberts said, “You’re not seeking to join the institution; you’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship, and you want to introduce into it a same-sex relationship.”
Bonauto said that society’s failure to grant legal privileges, and social welfare programs intended for stay-at-home mothers, to homosexual couples brands them with “the stain of unworthiness.”
Dignity or biology?
Justice Anthony Kennedy agreed that gay couples have said they are petitioning the court to change the definition of marriage “in order to show that we, too, have a dignity that can be fulfilled.”
But those who defended marriage before the court – led by James J. Bursch, the special assistant attorney general for the state of Michigan – said marriage does not exist as a self-esteem program. “The marriage institution did not develop to deny dignity or to give second class status to anyone. It developed to serve purposes that, by their nature, arise from biology,” he said.
The four dependably liberal justices argued that marriage had changed over time and now enshrines a state’s respect for a loving relationship between two people.
But Bursch responded, “The state doesn’t have an interest in love and emotion. … It’s about binding children to their biological moms and dads.”
Allowing the ancient institution to be based more on emotions than the needs of babies would make marriage “more adult-centric and … less child-centric.”
“They are asking you to take an institution that was never intended to be dignitary-bestowing, and make it dignitary-bestowing. That’s their whole argument,” he said.
Justice Kennedy responded: “I don’t understand this not dignity-bestowing. I thought that was the whole purpose of marriage.”
If mutual love is the basis for granting marriage licenses, Bursch asked, why couldn’t a state refuse to grant marriage licenses to people who don’t love each other?
Justice Samuel Alito, part of the Court’s conservative wing, said that if love is the sole criterion of marriage, then marriage could not be limited to just two people, nor be denied to those who are biologically related.
Justice Stephen Breyer attempted to dismiss all arguments against redefined marriage by saying that they come down to two points: That marriage has always been this way, or that homosexuality violates our religious beliefs. Justices Elena Kagan and Ruth Bader Ginsburg asked why the law would single out a class of people and deny their rights on the basis of sexual preference.
“The state doesn’t care about your sexual orientation,” Bursch said bluntly. “What the state cares about is biological reality.”
At one critical moment, Bursch appeared to deny his central thesis. Justice Kagan asked if redefining marriage “would be announcing to the world that marriage and children have nothing to do with each other?”
Bursch replied, “Not in the abstract, Your Honor.”
“Well, not in the abstract, not in the concrete,” Kagan replied, as onlookers burst into titters of laughter.
Bursch recovered, stating that changing society’s view of marriage impacts society for generations to come. “You have things like no-fault divorce where we tweaked what marriage means, and it had consequences over the long term that some people didn’t expect,” he said.
But Bonauto said a biological and traditional view represented “an impoverished view of what marriage is.”
Who decides?
Another key issue before the court is whether the justices should be weighing in on the issue at all. Justice Antonin Scalia said that only 11 states had redefined marriage democratically, only three by popular referendum of the voters. The alleged national consensus on behalf of same-sex “marriage” is being imposed by activists in robes, he said. “It’s not the people deciding. It’s the judges deciding.”
Justice Roberts agreed that the means of implementation would affect whether people accept or reject the decision. “People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”
Even Justice Breyer asked Bonauto, “You want nine people outside the ballot box to require states that don’t want to do it to change. … Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?”
Bonauto could not cite history nor widespread voter approval but referenced international law by saying that there are “17 or 18 countries that actually do authorize marriage for same-sex couples.”
Justice Elena Kagan has cited foreign law as an influence in her understanding of the U.S. Constitution, as have other liberal justices.
The issue of who decides came up in the second half of the court’s arguments this morning. Justices must decide both whether the U.S. Constitution grants an inalienable right to homosexual “marriages” and also whether states must recognize “marriages” in states that have already redefined the institution.
Justice Roberts said that, if the Court grants the second question, then “one state would basically set the policy for the entire nation.”
The Obama administration’s Solicitor General Verrilli, said that states would decide the matter for themselves. But Roberts said the federal government could choose to prosecute states that refuse to uphold the Obama administration’s civil rights standards. (“Well, you have enforcement power, too,” Roberts said to Verrilli at one point.)
Justice Alito argued that the Supreme Court already ruled that a church institution cannot have a policy against interracial marriage, even if it claims a religious objection.
Verrilli admitted that the federal government’s decision to prosecute everyone who does not follow its diktats is “certainly going to be an issue.”
What about polygamy and incest?
During a vigorous back-and-forth, justices asked where the process of redefining marriage could stop. If the Court were to destroy the ancient precedent of restricting marriage to members of the opposite sex, Justice Alito asked, what would stop four people from marrying?
Bonauto replied twice that states would reject polygamy based on existing law and precedent – just as they are rejecting same-sex “marriage.” Bonauto said that, if a polygamous couple tried to obtain a marriage license, “states would rush in and say…that that is not the same thing that we’ve had in marriage.”
She also raised unspecified “concerns about consent.”
Alito injected some levity into the proceedings, saying, “Let’s say they’re all consenting adults, highly educated – they’re all lawyers.”
Bonauto worried that polygamy would introduce “family disruption,” because in the case of a divorce, it would raise the question of whether someone not physically related to the child would have access to the children. “If there’s a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? “ she asked. “There are issues around who is it that makes the medical decisions, you know, in the time of crisis.”
Critics have pointed out that gay “marriage” imposes the same situation. By separating a child from one or both of his biological children and placing the child into a relationship with someone who is not a biological relative, the new “father” or “mother” may have legal access to the child for life.
Alito then asked if state legislatures would remain able to forbid siblings from marrying one another. Verrilli admitted, “I’m not entirely sure that it would be.”
The justices are expected to hand down their ruling this summer.
