Justice Antonin Scalia wanted to know when it became unconstitutional to deny gay couples the right to marry. He pointed his question at Theodore Olson, the attorney representing those challenging Proposition 8, a California ban on gay marriage. Olson and the justice sparred without a clear answer emerging from their exchange on Tuesday, the first of two days of oral arguments that the court used to examine the legal terrain around same-sex couples marrying.
One fitting answer is: The right always has existed. Missing has been the actual raising of the matter, the question never asked, reflecting the culture, its values and traditions. Many years, decades or a century ago, few, if any, would have thought the moment right to advocate gay marriage.
What has happened in recent years is the culture has evolved. Thinking has changed. That is essentially what U.S. Sen. Rob Portman expressed in changing his mind about same-sex marriage after his son revealed that he is gay. Many have had the same personal experience. All together, the collective view has shifted. It is apparent in the polls and so many other aspects of our lives.
So when the question finally comes, as it did before the highest court in the land: Do gay couples have a constitutional right to marry? The one answer left standing is: Yes, they do.
That doesn’t mean a court majority will leap to a sweeping ruling affirming gay marriage. The justices appeared skittish about moving too fast. A majority may conclude the plaintiffs lack standing in the Proposition 8 case, returning to lower court decisions that affirmed gay marriage in California. A second ruling may overturn the misguided Defense of Marriage Act, bringing equal benefits to many gay married couples yet still leaving the larger question to each state.
Some of the justices seem to have Roe v. Wade in mind, taking the lesson of deferring decisions to the political rough and tumble of lawmakers and other elected officials, of avoiding the appearance of issuing a judicial edict. Yet in the matter of marriage, as in abortion, a right truly is at stake.
Consider court precedent. In a 1967 ruling, Loving v. Virginia, overturning laws barring interracial marriage, the court held that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” To deny “this fundamental freedom” on the basis of race, the court declared, subverts “the principle of equality at the heart of the 14th Amendment.”
And if those facing such discrimination are gay? The attorneys arguing to uphold Proposition 8 and the Defense of Marriage Act flailed in trying to make the case for denying gays the right to marry or to equal benefits. One argued the key to marriage is procreation. Yet many men and women marry and are childless.
At another point, the attorney contended that marriage plays a unique policing role, directing men and women to have children within its boundaries and thus bringing greater order and stability as a whole. The argument strained badly, and it did not include a reason why gay marriage would harm such a dynamic in any way.
Recall, too, that in 1996, the court held that maintaining tradition isn’t reason enough for perpetuating discrimination. Then, seven years later, it found the same about moral disapproval. Neither is sufficient for upholding a law.
What opponents of gay marriage must produce is a rational basis for the prohibition. Listen to the oral arguments of the past two days, and it simply wasn’t there, positions collapsing from erosion.
Justice Samuel Alito fretted: “You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet?” Actually, the institution isn’t gay marriage, but marriage itself, long a part of civilized lives. All that gays ask is not to be excluded. They want to pursue life, liberty and happiness just as others do.