Oral arguments took place this week in the landmark
Supreme Court case on whether same-sex couples
have a constitutional right to marry, leaving both
sides anxiously scrutinizing the ambivalent
comments of Justice Anthony Kennedy, the
likely swing voter. During two and a half
hours of tense debate over the legality
of the gay marriage bans in Michigan,
Kentucky, Ohio, and Tennessee, Kennedy
began by asking why nine unelected
justices should redefi ne a concept that has
existed for “millennia.” Later, however, he
made an explicit comparison between laws banning gay marriage
and laws banning interracial marriage, and expressed doubts
about denying homosexual couples the “dignity” of marriage—a
central theme in his previous opinions in favor of gay rights. Why,
he asked, don’t same-sex couples deserve the “same ennoblement”
as their heterosexual counterparts?
The rest of the court was divided along clearer ideological lines.
Conservative justices Antonin Scalia and Samuel Alito Jr. pointedly
noted that prior to 2000, no society in history had allowed
same-sex couples to marry, while liberal justices Ruth Bader
Ginsburg, Elena Kagan, and Sonia Sotomayor all questioned the
idea that same-sex marriages would harm heterosexual unions.
Chief Justice John Roberts gave some mixed signals. He noted that
public opinion was rapidly changing in favor of gay marriage, and
warned that a Supreme Court ruling forcing it on unwilling states
“will have a consequence on how this new institution is accepted.”
But Roberts also suggested that gay marriage bans could be struck
down on simple grounds of gender discrimination. “If Sue loves
Joe, and Tom loves Joe,” he said, “Sue can marry him, and Tom
can’t.” The court’s decision is expected in June.
What the editorials said
The shift in consensus in favor of gay marriage is “perhaps the
fastest political transformation in U.S. history,” said The Wall
Street Journal. Many Republican politicians are probably praying
the justices take this controversial issue off the table once and
for all. But “the Constitution never mentions marriage,” and the
Supreme Court should think twice about short-circuiting public
debate. “When in doubt, better to let judicial modesty and the
wisdom of the people prevail.”
Opponents of gay marriage have no valid legal argument,
said The Washington Post. Their principal objection voiced
in court—that same-sex couples can’t procreate—is
immaterial, now that gay couples have proven
“quite capable of producing and raising welladjusted
children.” As for the theory that this
decision should be left to individual states, so as
to avoid another polarizing Roe v. Wade ruling,
that would place thousands of existing samesex
unions “into limbo.” Besides, fundamental
rights “are not subject to the vagaries of majoritarian politics.”
What the columnists said
Kennedy’s “chin-stroking” aside, a ruling that redefi nes marriage
looks like a foregone conclusion, said Ross Douthat in NYTimes
.com. But we religious conservatives have valid reasons to worry
what that will mean. “What society teaches about the link between
sex, marriage, and procreation has major implications for how,
when, and whether people couple, marry, and raise children.”
There’s nothing more important to society’s health. And we were
right when we warned that no-fault divorce, sexual permissiveness,
and Roe v. Wade would lead to a serious erosion of the family, an
explosion of single-parent families, and social decay.
Ultimately, this train cannot be stopped, said Jennifer Rubin in
WashingtonPost.com. By a 58-34 margin, American voters now
support same-sex marriage, while a similar proportion reject the
notion that businesses should be allowed to refuse service to gays
and lesbians on religious grounds. Today, gay-marriage opponents
resemble the Japanese soldiers in 1946 “who fought on from
bunkers on a remote island because they had not found out the
war was over.”
Predicting Supreme Court rulings “is tricky business,” said Noah
Feldman in BloombergView.com. But in three major cases over the
past two decades, Kennedy has written opinions that have carefully
built “the scaffolding” to expand full equality to gay citizens.
He may agonize a bit over completing that momentous project,
but in the end, “Kennedy is going to do the right thing.”
