Millennia of Marriage, Part I

For those who consider listening to Supreme Court oral arguments a good way to spend an afternoon, Tuesday was particularly good.

This was the day of oral arguments on Obergefell v. Hodges and the consolidated cases related to same-sex “marriage.” As we reviewed recently, [here and here] they covered two questions. The first is whether the 14^th Amendment requires all states to license same-sex “marriages.” The second assumes that question 1 is answered no, and then asked whether all states are required to recognize same-sex “marriages” licensed in any other state.

As I understand it, the way the Supreme Court works is, each justice studies the case individually, reads the briefs associated with the case, and develops an opinion. Quite likely those opinions are fairly well settled by the time of oral arguments.

But that is not to say the arguments are irrelevant. The arguments are intended to give each side the opportunity to voice its strongest points, and also to respond to questions the justices have—which might be intended to either show weakness in the arguments, or bolster those points with added clarity. And court watchers look at the questions and comments from the justices to give some idea about the way they’re leaning.

Our current Court is relatively set on divisive issues—as this is. We have four justices who generally read the Constitution as written and judge based on the written law; and we have four who generally look at cases according to their own personal views and then look for ways to construe those opinions as if they adhered to the Constitution. And then we have one justice, Kennedy, who is unpredictable. That means the future of marriage in the United States rests on the counsels’ ability to persuade one unelected man.

Justice Kennedy during oral arguments April 28, 2015
photo found here

I and others who know the value of real marriage have been justifiably worried about the possible outcome. While there was nothing too definitive on Tuesday, there was an awful lot that gives hope. So it surprised me when I read Wednesday’s Houston Chronicle and they (Adam Liptak of the New York Times wrote the story) seemed to have observed different oral arguments. Their news story ignored what I’m about to cover below, and opined, “On the evidence of his words, he seemed torn about what to do. But Kennedy’s tone was more emotional and emphatic when he made the case for same-sex marriage. That, coupled with his earlier judicial opinions, gave gay rights advocates reason for optimism.”

I’m doing this review to see if there’s something I missed. Buckle up. This will definitely take more than just today’s post.

Question 1

As soon as counsel for the plaintiffs, Mary Bonauto, began her introductory speech, Justice Ginsburg interrupted:

JUSTICE GINSBURG: What do you do with the Windsor case where the court stressed the Federal government's historic deference to States when it comes to matters of domestic relations?

Good question. Because, in Windsor, the Court declared that the federal government could not have a definition of marriage (despite the thousands of places in law where marriage relates to federal law and thus requires a definition) because it had to defer to states, who might have different definitions. OK, so the federal government cannot prescribe a definition because of federalism—separate sovereign states. Yet now they are being asked to force a definition on all states because of the 14^th Amendment equal protection clause.

MS. BONAUTO: And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.

Justice Roberts then pointed out that, according to longstanding definition, these people were not joining the institution, but changing it.

CHIEF JUSTICE ROBERTS: Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.

Ms. Bonauto went on autopilot, repeating the claim that state laws are preventing a class of people from participating in the institution, rather than biology and choices. Justice Roberts made sure she understood:

CHIEF JUSTICE ROBERTS: No. My question is 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.

It wasn’t spelled out, but it was clear to me that there is a difference between preventing a person from marrying because of their belonging to a class (homosexuals) and preventing couples. There is nothing in the law related to sexual orientation (which counsel for the defense did say); homosexuals are not prevented from marrying. But that doesn’t mean they can “marry” someone who does not qualify as being a person of the opposite sex, not married to someone else, not too close a relative, or not of age to consent—the same law that applies to everyone else.

Ms. Bonauto tried to claim that the male-female relationship isn’t fundamental, and that ideas change. I get the feeling she’s not used to being challenged on her talking points. At this juncture, Justice Kennedy stepped in with what is likely to be a quoted point going forward:

JUSTICE KENNEDY: One of the problems is when you think about these cases you think about words or cases, and the word that keeps coming back to me in this case is millennia, plus time. First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it's been it was about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years. And so there's time for the scholars and the commentators and the bar and the public to engage in it. But still, 10 years is I don't even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it's very difficult for the Court to say, oh, well, we know better.

Indeed. If there is a theme for the day, that is it.

Justice Alito brings up the next point, about intent of traditional marriage laws.

JUSTICE ALITO: You argue in your brief that the primary purpose of the Michigan law limiting marriage to a man and a woman was to demean gay people; is that correct?

That is indeed the claim. Therefore, they must prove that the people of Michigan had no other purpose than to demean homosexuals when they enacted the law. That is a high bar, and unreachable.

MS. BONAUTO: The Michigan statute and amendment certainly went out of their way to say that gay people were in some sense antithetical to the good of society.

JUSTICE ALITO: And did you say in your brief that the primary purpose of that was to demean gay people?

MS. BONAUTO: I think it has that effect, Your Honor. I do. Now, at the same time

JUSTICE ALITO: Is that true just in Michigan or is that true of every other State that has a similar definition of marriage?

She had to admit that maybe not all had the precise intention, but…

MS. BONAUTO: But even if there's not a purpose to demean, I think the common commonality among all of the statutes, whether they were enacted long ago or more recently, is that they encompass moral judgments and stereotypes about gay people. Even if you think about something 100 years ago, gay people were not worthy of the concern of the government and the and and moral judgments about

JUSTICE ALITO: Well, how do you account for the fact that, as far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way, or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?

I like it when thinking people ask questions that get to the germ of an issue. He’s going to make her prove that, not only the current specific Michigan law exists only to express animus toward a class, but that the antecedents to such laws, the definition used over time and cultures, all were intended to demean homosexuals. She begins to look foolish. She stammers that, “Times can blind.” And, you know, discrimination against women, and blacks, and….

Justice Ginsburg tried to help by muddying the waters with the idea of dominant-subordinate relationships in ancient marriage. Justice Roberts halted that analogy as not useful here. Ms. Bonauto added in questions about mixed-race marriages. Justice Scalia squelched that:

JUSTICE SCALIA: Well, not all societies banned mixed-race marriages. In fact, not even all States in this country banned. But I don't know of any—do you know of any society, prior to the Netherlands in 2001, that permitted same-sex marriage?

He’s continuing his point about her insistence that all these cultures were bigoted:

JUSTICE SCALIA: For millennia, not a single other society until the Netherlands in 2001, and you're telling me they were all—I don't know what.

And then he tries to bring us back to the clarity of the question to be settled:

JUSTICE SCALIA: Well, the issue, of course, is not whether there should be same-sex marriage, but who should decide the point.

I’m pretty sure Justice Sotomayor is pro-same-sex “marriage,” but she's not done with the intent question, and introduces a question on historic discrimination that only strengthens Justice Scalia’s point:

JUSTICE SOTOMAYOR: Now, counselor, in terms of this millennium, what's been the status or the view of gay people in most of those countries? Have they been subject to the kinds of discrimination that they were subject to here? Were they welcomed into the worldwide community? Was it free of discrimination?

Ms. Bonauto says some irrelevant things about whether they had constitutional protections like ours. And then Justice Alito gives a little history lesson:

JUSTICE ALITO: But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was well accepted within certain bounds. But did they have same-sex marriage in ancient Greece?

He summarizes: they had marriage; they had same-sex relationships that even received a fair amount of cultural approval. But they did not have same-sex marriage. So…

JUSTICE ALITO: So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?

She seems flustered. And then, surprisingly, it is Justice Breyer (another I would have assumed favored same-sex “marriage”) who nails the point:

JUSTICE BREYER: And to me, it takes the form, the opposite view has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require States that don't want to do it to change what you've heard is, change what marriage is to include gay people. 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?

It must be a daunting thing to face the Supreme Court—especially when you’re in the wrong. And not very well prepared for the inevitable questions.

So far we’ve looked at the likelihood that real marriage requires a man and a woman for reasons other than bigotry. We’re still in the middle of question 1 arguments. So coming up next we’ll look at rationale for changing marriage to include same-sex couples, but not include any other changes in the definition.