Okay: What is the Supreme Court thinking about marriage? They just heard oral argument from gay couples, from the states that want to preserve their bans, and from the U.S. Government. And we can make a couple guesses about what's going through their heads.
First, a few basics. There are nine justices. Conventional wisdom is that four are sympathetic to marriage equality. Four are probably opposed. And one is probably somewhere in the middle.
The ones who are opposed are really opposed, starting with Scalia. He said marriage equality amounts to "a requirement of action which is unpalatable to many of our citizens for religious reasons."
In other words, marriage equality would force ministers to preside over weddings they don't approve of. But, of course that's ridiculous. Yeah, there are nondiscrimination laws that require businesses to treat customers equally. But, he's mixing up non-discrimination laws with the First Amendment, which protects private religious acts. Religious officials can choose who to associate with in private. But this case is about the government. And the government, which has to represent everyone, can't pick and choose who the law protects.
Justice Roberts also seemed to be coming down against marriage equality. He said:
You're not seeking to join the institution, you're seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.
This is also ridiculous. I don't know much about straight couples. But I'm pretty sure they don't give Valentine's Day cards that say, "My favorite thing about you is that you're the opposite sex." If we're talking about the "fundamental core" of marriage, well, a relationship is about a little bit more than just gender.
But the states are continuing to cling to this idea that marriage has to be about the ability to reproduce. According to John Bursch, the states' attorney, granting marriage equality for gays and lesbians would mean "marriage and children don't have anything to do with each other," and that means we would have "more children outside of marriage."
In other words, gay marriage makes straight people have random babies. Okay, sure. This is the same argument that the anti-gay side made two years ago in the Windsor case. And how did that work out for them? Not so well. Only Alito and Thomas signed on to that reasoning with Windsor. The other seven didn't buy it.
Speaking of Alito, during this most recent argument, he brought up polygamy as a reason to deny marriage equality. He asked, in essence: If we're going to let gays and lesbians get married, why not groups of people?
This comes up a lot, and it can be a hard question to answer. But the easiest response is that plural marriage is just way more complicated, so it's a much larger shift than simply letting gays and lesbians marry. For example, if one member of the group divorces, do any of the remaining spouses get child custody? If there's a disagreement over medical care in an emergency, which spouse has more authority?
These are questions that could be answered, but polygamy simply isn't at issue in this case. In part because plural marriages are just as heterosexual as they are queer. You could easily ask, "Doesn't straight marriage lead to polygamy?" And that's why straight people shouldn't be allowed to get married.
I mentioned Thomas a minute ago. Here's what he had to say during oral argument:
Okay, he didn't say anything. But he has written things. Back in February he wanted to the court to block marriage from starting in Alabama, saying they should have "preserved the status quo." And although he didn't say that during oral argument -- or in fact, say anything at all -- Mary Bonauto did have a chance to respond to that whole status quo thing: "the effect of waiting is not neutral."
There are consequences to waiting. People are hurt. Couples are denied their rights, which has ramifications from child custody to driver licenses to death certificates. Look at what the status quo means: Gay couples separated in hospitals. Losing their life savings when one passes away. Having a marriage license revoked when they cross state lines. Spending thousands of dollars to adopt their own children because the state won't recognize both parents.
That's what Thomas wants to preserve? Maybe that's why he kept quiet in court. It sounds pretty awful when you say it out loud.
Those four justices -- Scalia, Roberts, Alito and Thomas -- are probably going to rule against marriage equality.
On the other side, we have Ruth Bader Ginsberg, who did not let the states' attorney get away with anything. When he said that letting gay couples marry would harm the state's ability to encourage heterosexual marriage, she said "How could that be? ... You're not taking anything away anything from heterosexual couples."
Justice Kagan agreed. "It's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children."
Sotomayor jumped in as well, asking, "How does withholding marriage from one group... increase the value to the other group?"
It's a good question. Bursch stammered at that, and avoided it at first. Eventually Scalia gave him a way out: "Do you have to answer that question?" he asked. "We don't," said Bursch, and tried to change the subject.
But Breyer wouldn't let him go. "If we assume a basic purpose of marriage is to encourage an emotional and rearing bond between parents and children ... allowing gay people to marry will weaken it? ... What's the empirical connection? That's what I have a problem with in your argument."
In fact, Bryer gave several encouraging signals. One is that he called marriage a "fundamental liberty." That is a big big deal, because if a liberty is fundamental, it should be extended to all people.
Sotomayor agreed: "The right to marriage is... embedded in our constitutional law. It is a fundamental right." Great! Okay! Now tell Kennedy.
Kennedy's the swing vote here. He's probably the one who'll decide one way or the other. And he was pretty hard to read. On one hand, he said, "This definition... has been with us for millennia. And it's very difficult for the court to say 'Oh well, we know better.'"
He also said that marriage equality is so new that there's not enough social science to know its effect.
But on the other hand, he really let the states' attorney have it. When Bursch tried to claim that marriage should only be for people who can procreate, Kennedy asked why it matters. Gay couples, he said, have "a dignity that can be fulfilled."
Bursch really screwed up at this point. He said that marriage isn't supposed to bestow dignity, to which Kennedy said, "I thought that was the whole purpose of marriage." Remember, over a decade ago, in the Lawrence case that overturned anti-sodomy laws, Kennedy wrote a majority decision about how the Constitution protects things like marriage and family and dignity.
Bursch stuck to his argument, saying that the dignity of marriage is just an accident. That marriage is really just about "benefits and burdens, but not necessarily."
Mary Bonauto pounced on that, calling it "an impoverished view of what is marriage."
If ever there was a moment when Kennedy needed a push to the side of equality, that was probably it. On one side, there's gay couples saying that marriage bans deny them dignity. On the other, there's states saying they have no reason to afford gay couples any dignity. And between them, there's the swing vote, a justice who has already said that dignity for gay couples is baked into the Constitution. Gee. How do you think it's going to go?
But I have to say, my favorite moment came at the end of Mary Bonauto's first round of argument. After debating whether marriage equality flows from the Constitution or from the states, she concluded by saying, "It's not about the court versus the states. It's about the individual making the choice to marry and with whom to marry, or the government."
Perfect. Beautifully done. We have two months until the end of June. I can't wait.