Same-sex marriage opponents sounded desperate in court today. They should be.
It would be premature to declare that the US supreme court will guarantee a right to same-sex marriage in all 50 states, but that’s where the smart money is: today’s oral argument allows supporters of marriage equality to remain optimistic" that nationwide legalization is in the not-so-distant future.
But what was, perhaps, even more fun than a win in the offing was that the desperation of opponents of same-sex marriage leading up to today’s argument in Obergefell v Hodges was palpable. The most telling example is the remarkably widespread calls for Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from the case because both officiated same-sex marriages, allegedly rendering them unfit to hear the case. “Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it,” declared the American Family Association.
It should go without saying that this argument is absurd. The standpoint of white, male, heterosexual Roman Catholics - like fellow justices Antonin Scalia, Samuel Alito, John Roberts and Anthony Kennedy - is no more “neutral” than anyone else’s. Kagan and Ginsburg officiating same-sex weddings is no more relevant than Clarance Thomas having officiated one of Rush Limbaugh’s innumerable marriages. Justice Ginsburg’s socially liberal views are no more relevant than Justice Scalia’s often-stated socially conservative views. And, Ginsburg asked the first question at argument, settling any question of recusal with a firm “no way” from the Notorious RBG.
And yet, it’s hard to blame opponents of same-sex marriage for making such hilariously disingenuous arguments: their arguments against marriage equality on the merits are no better. The amicus briefs filed by opponents of same-sex marriage are a sorry lot, rife with unfounded speculation and junk science.
As if to illustrate this, Chief Justice Roberts quickly brought up the first tautology: “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.” But definitions in pre-2003 editions of Marriam-Webster cannot prove that opposite-sex coupling is the “core” characteristic of the institution of marriage, or that the exclusion of same-sex couples is constitutionally justified. As long as the equal protection clause remains in force, traditions cannot be self-justifying.
The reliance on tradition is also highly selective: marriage has always been an evolving institution, not a static one. Are we required to recognize coverture and polygamous marriages because these were once embedded in the definition of marriage? (Justice Alito, predictably, brought up the supposed polygamy slippery slope, without recognizing that the question cuts both ways.)
Justice Ginsburg addressed their point: “Same-sex unions would not have opted into the pattern of marriage, which was ... a dominant and a subordinate relationship.” That same-sex unions would be nonsensical when marriage in the recent history of our country presupposed that women would forfeit many of their rights to men if they participated in the institution is a compelling argument that the definition of marriage changed long before 2015.
Justice Ginsburg addressed their point: “Same-sex unions would not have opted into the pattern of marriage, which was ... a dominant and a subordinate relationship.” That same-sex unions would be nonsensical when marriage in the recent history of our country presupposed that women would forfeit many of their rights to men if they participated in the institution is a compelling argument that the definition of marriage changed long before 2015.
Inevitably, the specter of religious leaders being compelled to perform same-sex marriages was raised by Justice Scalia. Kagan swiftly rebutted the argument, pointing out that “there are many rabbis that will not conduct marriages between Jews and nonJews, notwithstanding that we have a constitutional prohibition against religious discrimination.” Even if the court rules that states cannot ban same-sex marriage, this will not mean that religious leaders will be compelled to perform marriages that contravene their religious traditions. It will be city hall, not previous religious leaders, who will be required not to discriminate.
The arguments made by John J Bursch on behalf of the discriminating states were no better than the ones sympathetic justices made on their behalf. Bursch began by arguing that every individual has a “fundamental liberty interest in deciding the meaning of marriage” that would be violated by finding a constitutional right to same-sex marriage. As Justice Sotomayor explained, the argument is bizarre: individuals would retain the ability to define marriage as they see fit even if states did not discriminate against same-sex couples. At best, the argument seems to be that the “rights” of states to discriminate should trump the rights of individuals to not be discriminated against, which is no more attractive a notion than it was when it was used to justify racial discrimination in the 19th and 20th centuries.
And yet, it made sense for Bursch to open with inept, disproven democratic theory, because his other arguments were worse. His attempts to argue that extending marriage rights to same-sex couples would harm child-rearing and heterosexual marriage were so feeble that Justice Scalia intervened at one point to suggest that Bursch didn’t actually have to answer the question.
As anyone who has read the court’s opinion eviscerating the Voting Rights Act knows, however, that the arguments for the constitutionality of bans on same-sex marriage are terrible doesn’t mean that the court won’t embrace them. So all court-watchers have to look to the swing vote, Anthony Kennedy, for clues.
Kennedy was not particularly active during the oral argument and, in isolation, his questions reflected ambivalence, echoing both the traditionalist concerns of Roberts and suggesting that bans on same-sex marriage undermined the dignity of gays and lesbians.
However, one clue to Kennedy’s eventual vote can perhaps be found in his silence during the second part of oral argument, which focused on the question of whether states could be required to recognize same-sex marriage performed in other states even if their own bans were upheld. The most plausible explanation for Kennedy’s disinterest in the question is that he believes it will be moot because all of the state bans will fall.
When combined with Kennedy’s past support for LGBT rights and the near-certainty that the four Democratic nominees will vote to strike down the bans, this suggests that opponents of marriage equality are right to be desperate. The weakness of their arguments suggest that the Supreme Court’s recognition of the same-sex marriage rights is long overdue.
Source
Supreme Court Oral Arguments on Same-Sex Marriage, Audio, Part 1
Supreme Court Oral Arguments on Same-Sex Marriage, Audio, Part 2
Transcript, Part 1
Transcript, Part 2
But what was, perhaps, even more fun than a win in the offing was that the desperation of opponents of same-sex marriage leading up to today’s argument in Obergefell v Hodges was palpable. The most telling example is the remarkably widespread calls for Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from the case because both officiated same-sex marriages, allegedly rendering them unfit to hear the case. “Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it,” declared the American Family Association.
It should go without saying that this argument is absurd. The standpoint of white, male, heterosexual Roman Catholics - like fellow justices Antonin Scalia, Samuel Alito, John Roberts and Anthony Kennedy - is no more “neutral” than anyone else’s. Kagan and Ginsburg officiating same-sex weddings is no more relevant than Clarance Thomas having officiated one of Rush Limbaugh’s innumerable marriages. Justice Ginsburg’s socially liberal views are no more relevant than Justice Scalia’s often-stated socially conservative views. And, Ginsburg asked the first question at argument, settling any question of recusal with a firm “no way” from the Notorious RBG.
And yet, it’s hard to blame opponents of same-sex marriage for making such hilariously disingenuous arguments: their arguments against marriage equality on the merits are no better. The amicus briefs filed by opponents of same-sex marriage are a sorry lot, rife with unfounded speculation and junk science.
As if to illustrate this, Chief Justice Roberts quickly brought up the first tautology: “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.” But definitions in pre-2003 editions of Marriam-Webster cannot prove that opposite-sex coupling is the “core” characteristic of the institution of marriage, or that the exclusion of same-sex couples is constitutionally justified. As long as the equal protection clause remains in force, traditions cannot be self-justifying.
The reliance on tradition is also highly selective: marriage has always been an evolving institution, not a static one. Are we required to recognize coverture and polygamous marriages because these were once embedded in the definition of marriage? (Justice Alito, predictably, brought up the supposed polygamy slippery slope, without recognizing that the question cuts both ways.)
Justice Ginsburg addressed their point: “Same-sex unions would not have opted into the pattern of marriage, which was ... a dominant and a subordinate relationship.” That same-sex unions would be nonsensical when marriage in the recent history of our country presupposed that women would forfeit many of their rights to men if they participated in the institution is a compelling argument that the definition of marriage changed long before 2015.
Justice Ginsburg addressed their point: “Same-sex unions would not have opted into the pattern of marriage, which was ... a dominant and a subordinate relationship.” That same-sex unions would be nonsensical when marriage in the recent history of our country presupposed that women would forfeit many of their rights to men if they participated in the institution is a compelling argument that the definition of marriage changed long before 2015.
Inevitably, the specter of religious leaders being compelled to perform same-sex marriages was raised by Justice Scalia. Kagan swiftly rebutted the argument, pointing out that “there are many rabbis that will not conduct marriages between Jews and nonJews, notwithstanding that we have a constitutional prohibition against religious discrimination.” Even if the court rules that states cannot ban same-sex marriage, this will not mean that religious leaders will be compelled to perform marriages that contravene their religious traditions. It will be city hall, not previous religious leaders, who will be required not to discriminate.
The arguments made by John J Bursch on behalf of the discriminating states were no better than the ones sympathetic justices made on their behalf. Bursch began by arguing that every individual has a “fundamental liberty interest in deciding the meaning of marriage” that would be violated by finding a constitutional right to same-sex marriage. As Justice Sotomayor explained, the argument is bizarre: individuals would retain the ability to define marriage as they see fit even if states did not discriminate against same-sex couples. At best, the argument seems to be that the “rights” of states to discriminate should trump the rights of individuals to not be discriminated against, which is no more attractive a notion than it was when it was used to justify racial discrimination in the 19th and 20th centuries.
And yet, it made sense for Bursch to open with inept, disproven democratic theory, because his other arguments were worse. His attempts to argue that extending marriage rights to same-sex couples would harm child-rearing and heterosexual marriage were so feeble that Justice Scalia intervened at one point to suggest that Bursch didn’t actually have to answer the question.
As anyone who has read the court’s opinion eviscerating the Voting Rights Act knows, however, that the arguments for the constitutionality of bans on same-sex marriage are terrible doesn’t mean that the court won’t embrace them. So all court-watchers have to look to the swing vote, Anthony Kennedy, for clues.
Kennedy was not particularly active during the oral argument and, in isolation, his questions reflected ambivalence, echoing both the traditionalist concerns of Roberts and suggesting that bans on same-sex marriage undermined the dignity of gays and lesbians.
However, one clue to Kennedy’s eventual vote can perhaps be found in his silence during the second part of oral argument, which focused on the question of whether states could be required to recognize same-sex marriage performed in other states even if their own bans were upheld. The most plausible explanation for Kennedy’s disinterest in the question is that he believes it will be moot because all of the state bans will fall.
When combined with Kennedy’s past support for LGBT rights and the near-certainty that the four Democratic nominees will vote to strike down the bans, this suggests that opponents of marriage equality are right to be desperate. The weakness of their arguments suggest that the Supreme Court’s recognition of the same-sex marriage rights is long overdue.
Source
Supreme Court Oral Arguments on Same-Sex Marriage, Audio, Part 1
Supreme Court Oral Arguments on Same-Sex Marriage, Audio, Part 2
Transcript, Part 1
Transcript, Part 2