WASHINGTON: My three takeaways from Tuesday’s Supreme Court arguments on same-sex marriage involve the justices’ reasonable anxiety about overstepping their constitutional roles; the ridiculous argument that same-sex marriage would harm the state’s interest in protecting marriage as a vehicle for procreation; and the irrelevance of Roe v. Wade as historical precedent.
(1) Justice Anthony Kennedy’s trepidation about pronouncing constitutional protection for the right of same-sex couples to marry is understandable. I hope Kennedy decides in favor of that right and I expect he will, given both his earlier rulings and other comments Tuesday.
But Kennedy’s hesitation is appropriate and human, especially since the outcome likely hinges on his vote. The court’s 1967 decision upholding the right to interracial marriage presents a compelling argument in favor of same-sex marriage. Yet expanding marriage to same-sex couples feels like — I think it is — a bigger leap.
“This definition” — marriage as between a man and a woman — “has been with us for millennia,” Kennedy observed as the arguments commenced. “And it’s very difficult for the court to say, ‘Oh, well, we know better.’?”
Thank goodness Kennedy went on to make other comments that seemed more supportive of same-sex marriage. But we should want justices who pause — who agonize a bit — before usurping the democratic choices of voters. Indeed, you don’t have to be the swing justice to be a bit antsy.
“You want nine people outside the ballot box to require states that don’t want to do it to change what marriage is to include gay people,” Justice Stephen Breyer said. “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?”
Solicitor General Donald Verrilli offered a convincing answer. “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 … it is simply untenable — untenable — to suggest … that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals.”
(2) Issues of the roles of courts and legislatures aside, the arguments revealed what was already obvious: The policy justifications for excluding gays and lesbians from marriage are laughably thin.
John Bursch, who had the unenviable task of defending the state bans, put all his marbles on the procreation rationale. That may be the best legal argument, since the alternative is to condone discrimination against gays and lesbians on moral grounds, which would not sit well with Kennedy.
The procreation argument has several strands, each more incoherent than the next. The first is that the state’s interest in the institution of marriage centers on encouraging procreation and protecting the ensuing offspring. But as Justice Elena Kagan elicited through her questioning, no one argues that the state could restrict marriage to opposite-sex couples intending to procreate; indeed, many marriages involve opposite-sex individuals too old to produce children.
The bizarre part of the procreation argument is that, of course, if the state’s marriage interest involves ensuring that children grow up in stable homes with two committed parents, that should lead them to encourage same-sex marriage. Because, states, look around: Same-sex couples are having children, whether you let them marry or not.
Most bizarre of all is states’ claim of the procreative harm that would ensue if marriage were opened to same-sex couples. The best Bursch could manage was the fuzzy warning that “when you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences.” Such as? And where does that leave adoptive parents, like, say, the chief justice?
(3) Roe v. Wade, the Supreme Court’s ruling establishing a constitutional right to abortion, was cited just once during the arguments, but I suspect its controversial legacy nonetheless weighed on the justices, and animated their concerns about whether the court might be stepping prematurely into a social policy thicket.
But I think it’s wrong to worry that Obergefell v. Hodges — the main same-sex marriage case — will be Roe revisited. Four decades after Roe, the nation remains deeply divided on abortion; scarcely a decade after the first same-sex wedding was performed in the United States, it enjoys majority (and growing) support.
In the long term, the institutional risk to the court does not lie in declaring a constitutional right to same-sex marriage. It lies in failing to step up to the historical moment and do so now.
Marcus is a Washington Post columnist. She can be reached at email@example.com.