Maybe this fight will be more complex than some have thought. The oral arguments are an opportunity for the Supreme Court to examine the presumptions of both sides, so the lawyers are grilled relentlessly. What comes across most clearly so far is the ideological conflicts of a deeply divided court, where the balance shifts based on a single vote.
Reading the tea leaves from the arguments, we can make a few observations about the trends–the good, the bad, and the ugly…
Justice Anthony Kennedy pointed out that the definition of marriage has excluded gays and lesbians for “millennia,” but then again, there wasn’t much time between Brown (school desegregation) and Loving (interracial marriage). Kennedy is probably on our side, so more likely than not he’s playing devil’s advocate here, setting up the marriage equality advocates with a softball pitch. But maybe not: Kennedy did not sound entirely convinced about the inevitability of marriage, as had been widely presumed.
Samuel Alito pointed out that the Greeks approved of same-sex relationships, so maybe history is on the side of the queers after all? The conservative justices asked if this meant that every culture that has excluded LGBTs is “irrational” and “invidious.”
Of course, they are both, but the marriage equality lawyers can’t just come out and say that.
Who Decides Definition
John Roberts asked if the plaintiffs were asking to redefine marriage, or to join it. (The answer is to join it; but the burden of proof, when asked that question, is on the couples.)
Mary Bonauto ended her argument with a nice little flourish: this case is not about whether states or courts will decide marriage, she said. It’s about whether the individual will be allowed to decide who to marry, or whether the government will decide for him. BAM. Nice one, Mary.
Groaaaaan. We hate it when this argument comes up. For one thing, polygamy is more of a straight thing than a gay thing — it’s historically been about one man owning a ton of wives. (Although we may sometimes wish we had multiple husbands!) This has nothing to do with gay marriage, of course; it applies equally to straight marriage. (“If you’re going to let two straights get married, why not a whole bunch?”)
Anyway, marriage inequality advocates love to bring this question up, and the lawyers for the couples were ready. Why exclude polygamy from marriage? Because that would be an actual disruption to the institution in a way that allowing same sex couples to wed would never ever be. Duh.
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