By Religion News Service and BJC Staff Reports
The Supreme Court took up the question of a constitutional right to same-sex marriage on April 28. [Click here to read Brent Walker’s column on the church-state side of the arguments]
Justice Anthony Kennedy — the swing vote and the author of the Court’s major gay rights decisions for the past 20 years — struggled to understand how the Court in 2015 could alter the definition of marriage.
“This definition has been with us for millennia,” he said. “And it — it’s very difficult for the Court to say, ‘Oh, well, we — we know better.’”
Justices pressed lawyers for gay and lesbian couples in Ohio, Kentucky, Tennessee and Michigan — cases combined to be known as Obergefell v. Hodges — about the nature of the institution they were fighting so hard to access. One important question boiled down to this: Is marriage about a civil contract between two adults, or a societal covenant for the rearing of children?
Michigan’s Special Assistant Attorney General John Bursch, arguing to keep his state’s ban on gay marriage intact, repeatedly stressed that marriage is about securing bonds between parents and their biological (or adopted) children.
“There’s harm if you change the definition [of marriage] because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage,” he said.
Justice Elena Kagan said she found his warnings unrealistic.
“Do you think that that’s what it would do, Mr. Bursch, that if one allowed same-sex marriage, one would be announcing to the world that marriage and children have nothing to do with each other?” she asked.
Justice Ruth Bader Ginsburg played down the link between procreation and marriage, noting that elderly couples, infertile couples and even some prisoners could get state blessing on their marriages.
Ginsburg also noted that society’s understanding of marriage itself has evolved, now shunning the notion of “a dominant male [married] to a subordinate female.”
Justices Antonin Scalia and Samuel Alito wondered early and often what would prevent an even further redefinition of marriage to include multiple spouses, or even child brides. “Would there be any ground for denying them a license?” Alito wanted to know.
Proponents of same-sex marriage argued that if the Court really cares about the well-being of children, it must not overlook the estimated 210,000 children being raised by same-sex parents without “the stabilizing structure and the many benefits of marriage.”
Arguments about children and parentage, they said, are important, but also a sideshow to more fundamental questions about human dignity and civil rights.
“The right to be married is as basic a liberty, as basic a fundamental liberty … which has existed for all of human civilization,” Justice Stephen Breyer said, expressing dismay at the idea that the government would offer “that to almost everyone, but exclude[] a group.”
Kennedy wrestled with the idea of withholding the “dignity”-bestowing access to marriage, echoing his earlier decisions that same-sex couples want nothing more than the “same ennoblement” as everyone else.
Bursch emphasized that his view of marriage was about protecting children, not enhancing or harming any adult’s dignity.
“Dignity may have grown up around marriage as a cultural thing,” he said, “but the state has no interest in bestowing or taking away dignity from anyone, and certainly it’s not the state’s intent to take dignity away from same-sex couples, or from anyone based on their sexual orientation.”
Arguing on behalf of the Obama administration, Solicitor General Donald Verrilli framed the case — and the very nature of marriage — in the broadest possible terms.
“[W]hat I would suggest is that 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, they contribute fully as members of the community, that it is simply untenable — untenable to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals,” he said.
“Gay and lesbian people are equal,” said Verrilli. “They deserve the equal protection of the laws, and they deserve it now.”
The Court is expected to issue its decision by the end of June.
From the May 2015 Report from the Capital. Click here to read the next article.
