The oral arguments before the Supreme Court this week stimulated vigorous legal discourse not just between the counsel for the represented parties, but amongst the justices themselves. The questions posed to counsel cannot reliably serve as tealeaves, prognosticating the court’s ultimate ruling, but they did indicate some of the struggles the court faces when they rule on same-sex marriage.
At issue is whether several state’s referenda or state statutes defining marriage as between one man and one woman shall stand. Based on public opinion trends on the issue, the ruling may be a moot point, but the legal arguments before the court clearly indicate why the rush toward a redefinition of marriage will have a significant impact on our society and the republic.
Justice Anthony Kennedy pointed out that thinking marriage is the union of a man and a woman “has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.” He went on to observe that even the concept of same-sex marriage has “only been around for 10 years,” and compared with human history, he conjectured, “I don’t even know how to count the decimals when we talk about millennia.”
Chief Justice John Roberts echoed that observation, by stating, “Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife.” He then correctly observed, “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.”
Making the case that the definition of marriage really has nothing to do with “discrimination,” Justice Stephen Breyer observed that the male/female definition “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change … what marriage is.”
Justice Samuel Alito made the same observation when he declared, “There have been cultures that did not frown on homosexuality. … Ancient Greece is an example. It was well accepted within certain bounds. People like Plato wrote in favor of that.”And yet, ancient Greece and people like Plato never thought a same-sex relationship was a marriage. Alito concluded: “So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”
Justice Roberts clarified another significant issue as well, when he alleged that what the petitioners are arguing for in this case is not freedom from government, but government affirmation. Roberts explained that in a previous Supreme Court case, “the whole argument is the State cannot intrude on that personal relationship. Now people are suing saying “the State must sanction. It must approve that relationship. They’re two different questions.”
John Bursch, the lawyer defending the traditional marriage laws in Michigan, echoed this point. Based on precedence, he noted that while “the government cannot interfere in private, intimate conduct, the Court cannot as a constitutional matter … force the State into these relationships by forcing them to recognize and give benefits to anyone.”
Bursch made another critical point in his oral arguments. He said, “the marriage institution did not develop to deny dignity or to give second-class status to anyone. It developed to serve purposes that, by their nature, arise from biology.” He pointed out that the same-sex marriage argument is significantly different. “Now, the marriage view on the other side here is that marriage is all about love and commitment. And as a society, we can agree that that’s important, but the State doesn’t have any interest in that.”
He continued by illustrating that redefining marriage to say that it’s primarily about emotional commitment would have consequences. “When you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences. The consequences of redefining marriage won’t happen overnight, but the law will have an impact. We’re talking about something that’s going to change the meaning of the institution over generations.”
Chief Justice Roberts tendered perhaps the most significant indicator on how the court may rule. He noted that a court-imposed 50-state solution would not lead to civil peace, but to anger and resentment. “If the Court unilaterally redefined marriage, there will be no more debate. Closing of debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”
The premise of the same-sex marriage argument is that adults have the “right” to marry whomever they choose to, regardless of gender. But there is no such premise inherent in the institution of marriage. It is, rather, based in natural law, lex naturalis, which is the system of law that is determined by nature and is thus universal. Same-sex marriage is therefore, logically, preternatural. It has no logical basis in nature, nor can a presumed right can be extrapolated constitutionally, based on equal protection.
Based on logic and strength of arguments, and the types of questions the justices posed during oral arguments, it would seem the court may be inclined to defer such matters to the states respectively. If they do so, given the Roberts Court’s tendency to enjoin the legislative branch, they’ll likely encourage making provision for universal recognition of same-sex couples rights by states which uphold traditional marriage. But that’s logic, which can merely be presumed from the Court, based on precedence.
Associated Press award winning columnist Richard Larsen is President of Larsen Financial, a brokerage and financial planning firm in Pocatello, Idaho and is a graduate of Idaho State University with degrees in Political Science and History and coursework completed toward a Master’s in Public Administration. He can be reached at [email protected].