My takeaways from Tuesday’s Supreme Court arguments on same-sex marriage involve the justices’ reasonable anxiety about overstepping their constitutional roles; the ridiculous argument that same-sex marriage would harm the state’s interest in marriage as a vehicle for procreation; and the irrelevance of Roe v. Wade as historical precedent.
(1) Justice Anthony Kennedy’s trepidation about pronouncing constitutional protection for the right of same-sex couples to marry is understandable. I hope Kennedy decides in favor of that right and I expect he will, given both his earlier rulings and other comments Tuesday.
But Kennedy’s hesitation is appropriate and human, especially since the outcome likely hinges on his vote. The court’s 1967 decision upholding the right to interracial marriage presents a compelling argument in favor of same-sex marriage. Yet expanding marriage to same-sex couples feels like — I think it is — a bigger leap.
“This definition” — marriage as between a man and a woman — “has been with us for millennia,” Kennedy observed. “And it’s very difficult for the court to say, ‘Oh, well, we know better.’ “
Thank goodness Kennedy went on to make other comments that seemed more supportive of same-sex marriage. But we should want justices who pause — who agonize a bit — before usurping the democratic choices of voters. Indeed, you don’t have to be the swing justice to be a bit antsy.
“You want nine people outside the ballot box to require states that don’t want to do it to change what marriage is to include gay people,” Justice Stephen Breyer said. “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?”
Solicitor General Donald Verrilli offered a convincing answer. “In a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us . . . it is simply untenable — untenable — to suggest . . . that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals.”
Reasoning is thin
(2) The arguments revealed what was already obvious: The policy justifications for excluding gays and lesbians from marriage are laughably thin.
John Bursch, who had the unenviable task of defending the state bans, put all his marbles on the procreation rationale. That may be the best legal argument, since the alternative is to condone discrimination on moral grounds, which would not sit well with Kennedy.
The procreation argument has several strands, each more incoherent than the last. The first is that the state’s interest in the institution of marriage centers on encouraging procreation. But as Justice Elena Kagan elicited through questioning, many marriages involve opposite-sex couples too old to produce children.
Most bizarre of all is states’ claim of the procreative harm that would ensue if marriage were opened to same-sex couples. The best Bursch could manage was the fuzzy warning that “when you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences.” Such as? And where does that leave adoptive parents, like, say, the chief justice?
(3) Roe v. Wade, the Supreme Court’s ruling establishing a constitutional right to abortion, was cited just once during the arguments, but I suspect its controversial legacy nonetheless weighed on the justices and animated their concerns about whether the court might be stepping prematurely into a social policy thicket.
But I think it’s wrong to worry that Obergefell v. Hodges — the main same-sex marriage case — will be Roe revisited. Scarcely a decade after the first same-sex wedding was performed in the United States, it enjoys majority (and growing) support.
In the long term, the institutional risk to the court does not lie in declaring a constitutional right to same-sex marriage. It lies in failing to step up to the historical moment and doing so now.
