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Opening Arguments

A gay old time

It's risky to predict Supreme Court decisions, but the consensus seems to be, 1) The court will split in the usual four-four way on the gay marriage question, 2) Justice Anthony Kennedy will be the swing vote and, 3) given the opinion he wrote in the case partially dismantling the federal Defense of Marriage Act, he will vote in favor of gay marriage. Therefore, gay marriage as the law of the land is a done deal.

That's sort of what I've been saying for more than a year now, and it looks like that's indeed the way it might play out:

Kennedy opened by questioning whether it would be appropriate for the court to discard a definition of marriage that "has been with us for millennia."

Kennedy's later questions, though, touched on many of the same concerns he cited in decisions upholding gay rights—including the children of same-sex couples and the "dignity" conferred by marriage.

And while the court's conservative bloc continued to argue that same-sex marriage is too new to confer as a constitutional right, Kennedy noted that if the court does rule in favor of same-sex marriage, its decisions on gay rights would have followed roughly the same timeline the rulings that led it to strike down bans on interracial marriage.

The reference to interracial marriage is telling. It was in the 1967 case of Loving v. Virginia, which struck down anti-miscegenation laws, that the court said that marriage is one of our "basic civil rights." If such a right can't be denied on account of race, can it be denied on account of sex?

Here are some interesting thoughts (and more that a few links) on the subject from Elizabenth Price Foley, including this:

While I do take issue with constitutionalizing the definition of marriage via edict of 9 unelected Justices rather than allowing the political process to continue to unfold– as it has very successfully done over the past decade or so–the marriage is “two people” definition, if accepted, will have some predictable consequences.

If marriage is “two people,” then presumably the next front of litigation will be adult, consensual incestuous relationships– probably first cousins, who are prohibited from marrying in 25 States.  Once this legal restriction falls, other adult, consensual incestuous relationship bans should presumably fall, too, such as parent/child (whether same- or opposite- sex), aunt/uncle- niece/nephew, etc.  Presumably, nonage laws limiting marriage of minors would continue to be upheld pursuant to States’ parens patriae power.

But why stop at “two people”?  Why not three, four, or fifty-six?  Would restricting marriage to “two people” be discriminatory animus directed at the polyamorous?  Or is it somehow “rational” for government to limit “marriage” to “two people”?  Once the word “marriage” is unmoored from the male-female sexual union, things start to get very complicated.  If Americans wish to limit “marriage” to “two people,” it may be advisable to begin thinking about a constitutional amendment defining it as such.

That might seem a little over the top, but consider: If an old standard is being abandoned, then one of two things is true: 1. There is a new standard or, 2) There is no standard. Any who claim to know which one will be true once the traditional definition of marriage is tossed is are trying to deceive us or are fooling themselves. How this evolves is anybody's guess.

A final word. I think this post gets it right, the only real question os whether the vote is 5-4 or 6-3 with Chief Justice John Roberts jointing the majority.


Rebecca Mallory
Wed, 04/29/2015 - 7:04am

Much of the history of the western world over the past three decades has involved replacing what worked with what sounded good.


-- Thomas Sowell