Go back or go forward? That is the question for the Supreme Court in Obergefell v. Hodges, a case that could determine whether same-sex marriage is a constitutional right, whether the Constitution requires every state either to license same-sex marriages or to recognize those marriages if they’re performed outside the state.
I believe that SCOTUS will (actually, must) rule for the plaintiffs and establish the right for all couples to marry anywhere in the U.S. When a group is defined by an innate attribute and singled out for either special privilege or punitive measures, that is discrimination, and such discrimination is prohibited by the Fourteenth Amendment of the Constitution: that no state may “deny to any person within its jurisdiction the equal protection of the laws.” As Emily Bazelon says, “Marriage equality is a civil rights slam dunk.”
Though the justices are not required to consider the practical results of their decisions, I should think that even the conservative justices (except perhaps Thomas) would shrink from disrupting millions of established families. Then again, conservatives won’t allow abortion, but when a child is born to an indigent mother, they wash their hands of all responsibility for both mother and child. So much for their concern for children.
Justice Kennedy’s assertion that the “traditional” definition of marriage has been around for “millennia,” as well as Chief Justice Roberts’s saying that in every definition he looked up marriage had been defined as the legal union of a man and a woman until a dozen years ago, is not quite true. They call themselves scholars? The justices didn’t restrict their definition of marriage by characterizing it as Christian or Judaeo-Christian or Western or modern. They couldn’t do that, of course, because of the establishment clause in the First Amendment that prohibits the government from establishing any religion. But even within the U.S., let alone internationally, there is hardly uniformity in the nature and purpose of marriage. (Think of Utah and the Mormons, who until 1890 practiced polygamy. Muslims may also have up to four wives.)
As far as I know (I haven’t read transcripts), even though Antiquity was mentioned in the oral arguments on April 28, there was no acknowledgement that marriage then or in the Middle Ages or at any other time or culture, was any different from the Court’s 20th- and 21st-century models. Not that they should have made such concessions, but neither should they have made vague references to something they clearly know little about. There was no mention of the fact that for most of Western history, marriage was for dynastic and economic reasons. Marriages were arranged, usually by the parents, to preserve and increase the family’s wealth and power and to ensure the production of an heir to continue the family line. The care and protection of children was not a big concern.
Opponents of gay marriage argue that heterosexual marriage is a societal good, because it produces children that perpetuate society. And if gays marry, opposite-sex marriages won’t produce children? If same-sex marriage is legal, opposite-sex marriages will die out?
As is usually the case, the justices must consider other, secondary issues in their decisions. Beyond the questions of philosophy and tradition, the justices will have to give precedence to government by judicial fiat or by the will of the people. The ballot box should be more powerful than the decision of nine intellectuals who are far from the fray. And yet — if the Court had not imposed its unpopular civil rights decisions upon a recalcitrant South, does anyone really think that they would have integrated their schools and welcomed everyone, regardless of the color of their skin, to their restaurants and drinking fountains?
When Roe v Wade came before the Court, Justice Ruth Bader-Ginsberg, a steadfast champion of women’s rights, feared that imposing a decision that went against the convictions of a majority of people rather than letting them change their minds gradually might rouse opposition to the new status quo, i.e., legal abortion. Now we know that she was right — far from being quietly and universally accepted, abortion has become the most divisive issue in America.
Perhaps the pundits who say the outcome of the case is in doubt, that it could be a nail-biter, are hedging their bets. I know I’m prejudiced, but I just don’t see it. History and logic are not on the side of the retrogrades.