Nothing is stronger than an idea whose time has gone. Yesterday’s Supreme Court argument showed as clearly as anything could have that same-sex marriage will prevail, not only because of the strength of its arguments, but because those arguments meet no resistance: The opposing view has become incomprehensible.
Justice Stephen Breyer, who usually has a lot of respect for legislative judgments, here found it difficult to find anything to defer to. When states try to justify denying same-sex couples the right to marry, “the answer we get is, well, people have always done it," observed Breyer. That answer won’t do, because it was used to justify racial segregation. “Or, two, because certain religious groups do think it’s a sin.” That can’t justify a law either. “And then when I look for reasons three, four and five, I don’t find them. What are they?”
There was a time, not long ago, when same-sex marriage was unimaginable. But the meaning of marriage has changed. As Justice Ruth Bader Ginsburg observed, traditionally, “marriage was a relationship of a dominant male to a subordinate female.” In recent decades, it has become less gender-specific, and sexual satisfaction has become a more important part of it -- so it made less and less sense to try to force gay people into heterosexual marriages. It increasingly plausible for same-sex couples to claim that they were not distinct from heterosexual couples in any way that mattered. The older, gender-specific understanding of marriage has faded so far that it is not merely rejected. It is not even understood.
John Bursch, the attorney defending Michigan’s ban on same-sex marriage before the court, argued that the purpose of marriage was “to encourage children to be bonded to their biological mother and father.” And that clearly is an important part of the historical justification for marriage. If our species did not reproduce sexually, we wouldn’t have the institution. But several of the justices pressed him on how same-sex marriage could possibly frustrate that purpose. Bursch explained that “changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment” would lead adults to think “that this relationship is more about adults and not about the kids.” But the causal connection here is doubtful.
A less vulnerable justification for the discrimination was suggested by Justice Samuel Alito in his dissent in United States v. Windsor in 2013, which struck down the federal Defense Of Marriage Act: “Marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so,” Alito wrote. This view simply deems unions of the procreative kind intrinsically better than same-sex relations could possibly be. It’s internally coherent, but there’s no daylight between premise and conclusion. It simply states a raw intuition -- and one that fewer and fewer people share. As Justice Sonia Sotomayor asked yesterday: “Why would that feeling, which doesn’t make any logical sense, control our decision-making?”
The big story of same-sex marriage, the most important development that has brought us to the brink of nationwide recognition, is the failure of conservatives to pass on their values to their children. Young people, who overwhelmingly support same-sex marriage, don’t so much reject their elders' argument as find them unintelligible. Even Alito didn’t make much effort to revive the comprehensive-union argument yesterday. Instead, he emphasized deference to the states. But that leads us back to Breyer’s problem: If you want to defer, you need something intelligible to defer to.
Incomprehension can, of course, cut both ways. Justice Anthony Kennedy, who almost certainly will cast the deciding vote, began the argument by stating his doubts: “I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it – it’s very difficult for the Court to say, oh, well, we – we know better.” Precisely because he doesn’t understand the tradition, he is reluctant to mess with it. But as the argument went on, he seemed to talk himself out of his reluctance, coming back to the theme, which dominated his earlier gay rights opinions, of the dignity of gay people. When Bursch argued that marriage law had nothing to do with anyone’s dignity, but was about encouraging bonds between adults and children, Kennedy responded: “I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage.” This gives a pretty clear sign of how Kennedy will swing.
It remains to be seen what rationale the Court ends up relying on. Many of the principal candidates present difficulties that the Court may want to avoid. It has not decided the constitutional status of discrimination based on sexual orientation, but it has not announced a new class of people protected from discrimination for many decades. Marriage is a fundamental right, but the Court has been reluctant to declare such rights, which smack of judicial legislation. The abstract idea of dignity, with which Kennedy is enamored, can’t decide concrete cases. He can write an opinion that relies on that, but it will be pretty mushy.
Chief Justice John Roberts noticed that there is a way to resolve this case without engaging such difficult questions: “If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based on their different sex. Why isn’t that a straightforward question of sex discrimination?” In the past, Ginsburg and Kennedy have both shown some sympathy for that argument.
The Court has long held that laws that discriminate based on sex must be presumed unconstitutional and invalidated unless the government can prove that they can pass rigorous, heightened judicial scrutiny. Since the state has such difficulty articulating a rational basis for denying marriage to same-sex couples, it could not withstand such scrutiny.
Bursch responded that the sex discrimination precedents “have always involved treating classes of men and women differently. And that’s not what we have here.” This has become the standard response to the sex discrimination argument: Laws banning same-sex marriage do not discriminate because they affect members of both genders equally: Men are forbidden to marry other men, and women forbidden to marry other women. But this is exactly the same kind of reasoning that the Supreme Court rejected when it struck down laws banning miscegenation and interracial marriage. The defenders of those laws claimed that they did not discriminate on the basis of race because both blacks and whites were equally barred from marrying members of the other racial group. But the law still denies rights to both men and women solely on account of their sex. The fact that Tom cannot marry Joe solely on account of gender is not somehow balanced by the fact that Sue is forbidden to marry Carol.
The cleanest, most lawyerlike way for the Court to resolve the case is just to apply its settled sex discrimination law. We will find out in June. The most controversial cases drag on until the end of the Court’s term, and this is one of those. But it’s already clear which way this is moving.