First Thoughts on the Marriage Case Oral Argument

Going through the transcript of the oral argument on the first question certified by the court in the marriage cases, whether the Constitution requires that same-sex couples be allowed to marry, highlights some interesting exchanges. Like this one at the beginning by Chief Justice Roberts:

 CHIEF JUSTICE ROBERTS:  Well, you say join

10 in the institution.  The argument on the other side is

11 that they’re seeking to redefine the institution.  Every

12 definition that I looked up, prior to about a dozen

13 years ago, defined marriage as unity between a man and a

14 woman as husband and wife.  Obviously, if you succeed,

15 that core definition will no longer be operable…

 CHIEF JUSTICE ROBERTS:  No.  My question is

23 you’re not seeking to join the institution, you’re

24 seeking to change what the institution is.  The

25 fundamental core of the institution is the opposite ­sex

1 relationship and you want to introduce into it a

2 same­sex relationship.

This is a highly disingenuous argument. Yes, the definition will change, but it will change to allow same-sex couples to get married, which will have no effect whatsoever on all of the opposite-sex marriages already in place or that will exist in the future. This same argument was made in Loving, of course. Up to only a couple decades prior to that, the definition of marriage excluded interracial couples, who could not get married, and it had been that way for centuries. It’s the argument from tradition, which has been shown to be irrelevant so many times that it’s kind of astonishing that anyone would still be using it.

Slavery was a tradition going back centuries. Not letting women vote was a tradition going back centuries. Segregation was a tradition going back centuries. The fact that those things were traditional had no bearing whatsoever on whether they should have been allowed to continue in that manner and it has no bearing on that question in this case either. But this question is just gobsmacking:

 JUSTICE SCALIA:  Miss ­­ Miss Bonauto,

4 I’m ­­ I’m concerned about the wisdom of this Court

5 imposing through the Constitution a ­­ a requirement of

6 action which is unpalatable to many of our citizens for

7 religious reasons.  They are not likely to change their

8 view about what marriage consists of.  And were ­­ were

9 the States to adopt it by law, they could make

10 exceptions to what ­­ what is required for same­sex

11 marriage, who has to honor it and so forth.

12  But once it’s ­­ it’s made a matter of

13 constitutional law, those exceptions ­­ for example, is

14 it ­­ is it conceivable that a minister who is

15 authorized by the State to conduct marriage can decline

16 to marry two men if indeed this Court holds that they

17 have a constitutional right to marry?  Is it conceivable

18 that that would be allowed?

Are you serious, Scalia? You know damn well that a church would not be forced to perform a same-sex wedding. You’re a Catholic, for crying out loud. Is the Catholic Church required to perform interracial or interracial marriages? Is it required to perform marriages for divorcees? Of course not, yet those are all constitutional rights as well. I think the transformation of Scalia from a justice to be taken seriously into a right-wing hysteric akin to a radio talk show host is now complete. This is just blatant fearmongering and he damn well knows better.

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  • Mr Ed

    This is a highly disingenuous argument. Yes, the definition will change, but it will change to allow same-sex couples to get married, which will have no effect whatsoever on all of the opposite-sex marriages already in place or that will exist in the future.

    I thought about this a lot yesterday. The definition of marriage has been changing for some time now. Women are no longer chattel of their husbands and are not legally submissive of them. What is being asked is that the laws be updated to reflect how society is changing. Up until 20 years ago the legal definition of wire in wire fraud was limited to telephone and telegraph, adding internet to that didn’t redefine the the word wire. In the past generation we have refined our understanding of what it means to be dead (brain dead versus rigamortis) and the laws slowly followed. This isn’t changing society, society changed and we are asking the laws to follow.

  • kenbakermn

    In your last sentence, dis you mean “the church would NOT be forced”?

  • robertfaber

    What’s even more gobsmacking is several of the justices asking about whether or not fundamental constitutional rights should be up to the voters.

  • Reginald Selkirk
  • http://motherwell.livejournal.com/ Raging Bee

    Question: are there any arguments against same-sex marriage that weren’t also used against interracial marriage?

    And if the Supreme Court says states can ban gay marriage, what will stop them from also banning interracial, inter-class, interreligious or even inter-party marriage?

  • http://motherwell.livejournal.com/ Raging Bee

    I think the transformation of Scalia from a justice to be taken seriously into a right-wing hysteric akin to a radio talk show host is now complete.

    Jesus fucking Christ, Ed, did you ever actually believe he was anything other than the reactionary hysterical buffoon he is today?

  • Chiroptera

    And let’s remember the original purpose of marriage: to cement the alliance between two different dynasties.

    And that was the reason why children were so important to marriage: so that the alliances would be strengthened by producing children who would feel loyalty to both branches (and, perhaps, to whom older members of both branches would feel loyal). It had nothing to do with raising children, even less with the well being of children; children were meant to be the tokens to keep the alliance together.

  • eric

    @1:

    I thought about this a lot yesterday. The definition of marriage has been changing for some time now. Women are no longer chattel of their husbands and are not legally submissive of them.

    This exact example was brought up by the lawyers. The conservative judges pooh-poohed it as merely a change in status within the institution of marriage, not a change in the institution itself. You say tomato…

    @5

    are there any arguments against same-sex marriage that weren’t also used against interracial marriage?

    I could be wrong, but I don’t think anyone in Loving claimed that white couple and black couples would stop getting married and have more kids out of wedlock if interracial couples were allowed to marry. I don’t think Bursch’s underlying argument (that marriage is about having kids, and those people who make it merely about being with the person you love are denigrating this noble institution) was used either.

  • Alverant

    So it seems Scalia’s position can be boiled down to “christian privilege”.

  • John Pieret

    Okay, the first thing to remember is that the questions appellate judges ask don’t necessarily have anything to do with what they consider the issues to be. They have had (in this case, I suspect, literally tos) of of briefs and the only function of oral arguments (given the they certainly have already made up their minds on the issues) is to probe the outer edges of the questions before the court. Scalia was, I suspect, just having some fun throwing an unexpected bomb at the proponents of SSM on an issue that had not been in the primary briefs.

    Roberts’ question is a bit more serious. After all, Kennedy also agonized over whether the Court should, on it’s own, change the institution of marriage, that had been, for “millennia,” understood as between a man and a woman, based only on a little over a decade of same-sex marriage. Roberts may be playing to Kennedy in that regard. In the argument on Question 2 (“Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”}, there were hints by Roberts and even Scalia that they would be willing to answer “yes.”

    That has led many commentators to speculate that Roberts may be trying to formulate a “compromise” with Kennedy: that the majority will answer “yes” to Question 2 but “no to Question 1 (“Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?”). The effect would be that LGBT people would be able to get the benefits of marriage everywhere (by getting married in the 11 or 12 jurisdictions allowing same-sex marriage either by law, referendum or state court decisions based on state constitutions) that won’t be effected by this decision but still allow most of the other states to maintain the fig leaf that they have not allowed such marriages in their state. The problem will be straightening out the status of thousands or tens of thousands of gay people who got married in states under court decisions that the Supreme Court refused to stay.

    The inducement for such a compromise would likely be something like “Look, you can have a 9-0 decision (assuming Scalia would go along and Alito and Thomas would follow) that, for all intents and purposes, achieves same-sex marriage everywhere in the US, instead or a 5-4 decision that will set off a firestorm on the order of Roe v. Wade. Sure, there will still be the crazies predicting Armageddon, but the LGBT people will be inspired to bring referendums and constitutional amendments, particularly in 2016, when a presidential election guarantees large turnouts and gives them the best chance of success, that may just end any real controversy. A couple of dozen states reversing same-sex marriage bans would pretty much put the last nail in the coffin of the whole issue and we can clean up any lingering effects later.”

    I could see that as appealing to Kennedy and even Ginsberg.

  • raven

    CHIEF JUSTICE ROBERTS: Well, you say join

    10 in the institution. The argument on the other side is

    11 that they’re seeking to redefine the institution.

    Every definition that I looked up, prior to about a dozen

    13 years ago, defined marriage as unity between a man and a

    14 woman as husband and wife.

    1. Biblical marriage was between one man and however many wives he could round up and however many sex slaves he could buy.

    Solomon, one of the major heroes of the bible had 700 wives and 300 sex slaves.

    2. Who cares about redefining marriage. We redefine things all the time. Women were redefined from second class beings to voters a century ago, and equal human beings under the law…hmmmm, well the ERA did fail thanks to the Mormons, Catholics, and fundie xians. OTOH, in theory it didn’t matter in the end, the law is supposed to recognize women as equal citizens.

    And oh yeah, blacks were redifined from slaves and 3/5 of a human to full human beings. It didn’t even take a Supreme court decision. It did however, take a lot of guns, gunpowder, and close to a million US soldier lives.

  • colnago80

    Re Raging Bee @ #5

    Question: are there any arguments against same-sex marriage that weren’t also used against interracial marriage?

    Actually, the procreation issue has been raised repeatedly by the opponents of same sex marriage. Since these clowns haven’t proposed not recognizing marriages between couples who are unable to conceive children, this argument is piffle.

    And if the Supreme Court says states can ban gay marriage, what will stop them from also banning interracial, inter-class, interreligious or even inter-party marriage?

    In order to ban interracial marriage, the court would have to overturn the Lawrence decision. Ain’t going to happen. Banning inter-religious marriages would clearly constitute violating religious freedom. Bee, since voters don’t declare a party when they register in many states (Virginia for example), how would they go about banning inter-party marriages in those states?

  • raven

    Roberts:

    Every definition that I looked up, prior to about a dozen years ago, defined marriage …

    I don’t understand Roberts point here at all.

    Well, so what. Since when is a dictionary the controlling law in the USA.

    Dictionaries don’t make laws or invent words. They document what our society does with language.

  • gshelley

    When a judge asks a dumb question, it’s not always clear if that is because they don’t understand the issue, they don’t know something, or they want the lawyer to clarify for some reason.

    It seemed that they missed a chance when asked if all the societies in the past had no rational basis to ban same sex marriage – they could easily have pointed out that most of them also made homosexual conduct illegal (though there are at least a couple who think the states should still be allowed to do that) so same sex marriage would also have to be illegal (and indeed, Scalia recognised the connection in Lawrence). Also, that in many cases, procreation and sex outside marriage met with a high degree of disapproval, to the extent of being against the law in many places, but few people today would argue this is reasonable, so again, in these societies, there was a genuine link between procreation and marriage, which is not the same today. They could also have added that in most of these societies, the laws had a religious basis, which is not acceptable for US laws.

    They could then have mentioned that this probably covers most, or even all of the societies that banned same sex marriage, but if not, we would have to look at each society on an individual level and why they made their laws to see if there was a rational basis

  • Saad

    Go back a few decades and the definition of voter was different too.

  • StevoR

    @3. robertfaber :

    What’s even more gobsmacking is several of the justices asking about whether or not fundamental constitutional rights should be up to the voters.

    “We hold these rights to be inalienable ..Hmm maybe some folks could do with consulting a dictionary after all!

  • John Pieret

    raven:

    Dictionaries don’t make laws or invent words. They document what our society does with language.

    That was Roberts point, He was saying that society had had that language for a long time that had only recently changed. While I and you might disagree with him, he was questioning whether the Court should make all the states change that long-standing definition in one fell swoop.

  • scienceavenger

    Part of me wants them to vote no on Question 1 just to keep it alive as a political issue for GOP nitiwts to keep faceplanting on, and for Democrats to rally more people to the polls.

  • doublereed

    Well Roberts pointed out that interracial marriages were allowed in other places in other cultures, but he couldn’t find any that allowed same-sex marriage until the last decade or so. Like his argument was less about America specifically.

  • davem

    Marriage has always been about property ownership, and to a lesser extent, the forming of alliances. The definition of it ‘as the union of a man and woman’ is merely happenstance. The churches got involved because they had the educated scribes who could actually write contracts. Informal marriage has been going on for millennia. The common-law wife is/was not that exceptional – what definition does that use?

  • doublereed

    Honestly, Tradition is the best argument out there. I don’t really see what it has to do with upholding people’s civil rights though.

  • raven

    Honestly, Tradition is the best argument out there.

    Tradition is a pretty dumb argument for anything.

    It was traditional for xians to burn heretics and apostates alive on stacks of firewood. Hey, that is me and my friends you are talking about here. we can’t be burned alive. We’ve got cats and children to feed, after all.

    Slavery and kings are also traditional. IIRC, Americans once had a king called King George somewhere over there, that we decided we didn’t want any more.

  • John Pieret

    doublereed:

    Tradition is the best argument out there. I don’t really see what it has to do with upholding people’s civil rights though.

    I’ll repost what I did yesterday: Solicitor General Donald B. Verrilli, Jr. ending remarks:

    … I would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable … untenable … to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals. Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.

    Exactly right and well said!

  • doublereed

    @22 raven

    Don’t forget the our tradition of Coverture, which was pointed out by Ginsburg during the arguments.

  • Doug Little

    I got the feeling from the transcript that Kennedy, who is really the only one that matters here, was more annoyed with the states argument that allowing gay marriage somehow damages traditional marriage and when the state bought up a statistic about an increasing number of children being born out of wedlock he took it that this was more of an argument for marriage equality.

    10  JUSTICE KENNEDY:  And ­­ and under your

    11 view, it would be very difficult for same­sex couples to

    12 adopt some of these children.  I ­­ I think the argument

    13 cuts quite against you.

  • chuckster

    To Scalia the religious college Bob Jones University had bans interracial dating until the 1980s!

    Can you even imagine Scalia being in the majority on Flag burning if it came up today.

  • http://drx.typepad.com Dr X

    If not an admission, Scalia’s use of the word “unpalatable” hints at one of the underlying bases for opposition: disgust.

  • chuckster

    John Pieret

    I think the compromise might happen, although some commetators noted Kennedy was silent here with the commetators thinking Kennedy though it would be moot.

    If we do get the compromise we will have situations like abortion in many parts of the country. Those will money can travel. If you do not have a lot of money you have to travel to a state that allows it. It has waiting period(and some states will adopt them just for this reason) you will have to come back or get a hotel room.

    And then the Hobby Lobby decision becomes huge on health insurance. The full faith and credit of the constittution say state have to recognize them but NOT Corporations. There will be many businesses in states that do not recognize same sex marriage that will refuse to cover same sex partners legally married elsewhere,

  • Michael Heath

    Once again C.J. Robert’s reveals how dishonest he was when he claimed in his nomination hearings all he’d do is call balls and strikes rather than craft public policy.

    In this case the first question before the court is simple. Do the states have constitutional authority to deny gay people equal protection regarding their marriage rights in light of the equal protection clause of the 14th Amendment?

  • doublereed

    Yea, the state’s arguments about it being due to biology and children or hurting marriages were terribly nonsensical. Kennedy pointed out that there are opposite sex couples without children and same sex couples with children so who cares. The state was a mess imo.

    It was the judges that brought up tradition.

  • footface

    And… what verse is it in the bible that says two men or two women can’t get married? And if that’s irrelevant, then I don’t understand how a belief against gay marriage can still be held to be a religious belief, as opposed to a, you know, belief belief. An aesthetic belief, maybe? Is any belief a special, sacred, protected-by-the-Constitution belief as long as it’s a religious person doing the believing? If a belief isn’t based on the tenets of a religion, how is it distinguishable from any other belief?

  • sharonb

    In Re Scalia’s bogus objection, if I am a member of a church that permits equal marriage, am I not discriminated against by state bans? Religion cuts both ways, therefore is not a reliable objection per se.

  • sharonb

    If they split the decosion, no on 1, yes on 2, it will create pandamonium. Can you imagine what will happen in bigot states like UT, AL, and TX where insurrectionists like Moore refuse to recognize the yes on 2? This would be a truly dreadful and devise outcome!

  • eric

    It has waiting period(and some states will adopt them just for this reason) you will have to come back or get a hotel room.

    And this will fly as perfectly legal, as I believe a number of places have them for the (sensible) reason that they don’t want random stranger on vacation to their state/country getting drunk and married…and they want the tourism income that comes with a large party staying there for several days. Vegas being an obvious exception (they don’t need rules to create tourism), but I remember researching getting married on a Caribbean island and finding several of them with a surprisingly long minimal residence time, such as a week.

    If Kennedy has decided to side with the liberals on question 1, I don’t think the conservatives have enough leverage to get him to flip just for the promise of a unanimous opinion on question 2. The leverage might in fact go the other way: the liberals may say ‘we have a 5-4 majority, and we’re going to write the opinion. Do you want to come on board and contribute to what that opinion says, or get left out entirely?’

  • Doug Little

    Yeah the tradition and 1000s of years didn’t really make sense to me either. If nothing ever changed we wouldn’t need the court the figure out what to do. Another way to put it is traditions were made to be broken.

  • raven

    if I am a member of a church that permits equal marriage,

    Many churches now, in fact, do allow SSM. Some very large, very old, and very traditional.

    My Pagan religion also does so. It still consists of myself and a few cats.

    But so what?

    The state cannot decide what is a Real Religion and what is a Fake Religion.

    According to the Supreme court, they can’t even decide whether a belief is sincerely held or not. They said that in Hobby Lobby.

    And whether it is true or not is irrelevant. Again Hobby Lobby.

    Which means my Pagan religion is every bit as real and true as the court’s Catholic religion. It is even older and far more moral and benign.

    We have cats and they have…priests. It’s not even a close contest.

  • raven

    Major church denomination fully embraces same-sex marriage

    www. wnd. com/…/presbyterian-church-fully-embraces-same-sex-marriag…

    Mar 18, 2015 – Major church denomination fully embraces same-sex marriage … The Presbyterian Church USA holds its biennial meeting in Detroit, Mich., June 14, 2014. … Come June 21, the new policy allowing the church to marry homosexuals … So far, the Episcopal Church, the United Church of Christ, the Quakers …

    There you go. Straight from World Nuts Daily.

    Presbyterians, Episcopals, UCC, Quakers, and others.

    Since it is trivial to form a new Christian sect, the list could be as long as anyone likes.

  • cptdoom

    I got the feeling from the transcript that Kennedy, who is really the only one that matters here, was more annoyed with the states argument that allowing gay marriage somehow damages traditional marriage and when the state bought up a statistic about an increasing number of children being born out of wedlock he took it that this was more of an argument for marriage equality.

    I’ve read a few analyses of the arguments, and one commentator (can’t remember which) also noted the questions that were not asked by the liberal wing, or Kennedy – “What happens to couples in states that had bans recently overturned by the courts? Aren’t they in a legal limbo?” This, along with his failure to ask any questions during the second phase of arguments, could imply that Kennedy had already made up his mind about ruling for equality.

  • eric

    I’ve read a few analyses of the arguments, and one commentator (can’t remember which) also noted the questions that were not asked by the liberal wing, or Kennedy…

    There’s a predictive SCOTUS engine out there which claims 70% accuracy. It doesn’t use a lot of factors (three, I think), and one of them is pattern of interruptions. I.e. when a Justice engages one of the lawyers, are they tossing them softballs and sitting back while they answer, or are they aggressively trying to take down their argument? Kennedy asked questions of both sides…but he only interrupted the States’ attorney.

  • doublereed

    To be honest I didn’t really understand the arguments either way on the state recognition case. It just seems ridiculous in any sort of practical context that a person’s marriage wouldn’t be recognized in another state.

    I actually thought it was a “states’ rights” issue in that states have to recognize each other and each other’s institutions. Like if a state didn’t recognize another state’s driver’s licenses (or birth certificate as pointed out in the argument). States shouldn’t be able to nullify other state’s institutions like that. But that demand for a state’s recognition didn’t seem to come up during the arguments, so maybe I’m wrong.

  • Randomfactor

    I see where changing the long-standing definition of a word can cause all kinds of problems. Why, for millennia there was a consensus of what the word “person” meant: a white male. Now the definition has been changed to include certain types of business associations known as “corporations.”

    Perhaps SCOTUS would like to go back and rectify that error.

  • John Pieret

    chuckster @ 28:

    I didn’t mean to imply that such a compromise would be a good thing, merely that it might appeal to Kennedy (and, maybe, Ginsberg) as a way to mute, if not prevent, the social dispute that both have publicly worried about. Certainly the wingnuts would throw up each and any barrier to SSM that they can think of but, presumably, those states that allow SSM would resist such efforts. I’m still hopeful that Kennedy will stand firm and, in the end, mindful of his court’s place in history, Roberts will go along, making it at least a 6-3 vote for equality.

  • Subtract Hominem, the Renegade Misandroid

    Saad @ 15

    Go back a few decades and the definition of voter was different too.

    Driver changed definitions around then too.

    A few more words that have been redefined in the relatively recent past and thus ended History and Tradition oh noez we’re all gonna die help me Dictionary Jeezus:

    mouse, torrent, cloud, window, stream, port, screen, brick, memory, boot, and driver (again).

  • http://kamakanui.zenfolio.com Kamaka

    John Pieret @ 42

    I’m still hopeful that Kennedy will stand firm and, in the end, mindful of his court’s place in history, Roberts will go along, making it at least a 6-3 vote for equality.

    I wish I could be as optimistic as you. The Hobby Lobby And Citizens United rulings were just so fucking bizarre I have lost all confidence in the institution of the Supreme Court. But I, too, still hold out some small hope.

    *Meta*

    Thanks, John, for your insightful commentary on this subject.

  • tomh

    @ #40

    States don’t have to recognize other states’ marriages. For example, there are a dozen or so states that consider first cousin marriages void, even though they were performed legally in other states. A few make it a criminal offense.

  • eric

    @35:

    Yeah the tradition and 1000s of years didn’t really make sense to me either.

    The more I think about it, the more I think Ms. Bonauto could’ve used the “thousands of years” comments by Breyer, Roberts, and Kennedy to go on the offensive – to turn it around and use it to press for greater protections for gays, rather than being defensive and trying to say that all that history doesn’t matter. Consider:

    JUSTICE BREYER: And to me, it takes the form, the opposite view 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 you’ve heard is change what marriage is to include gay people.

    But they were discriminating against gay people, because they did not give gay people equal rights. This historical record and the “nobody’s allowed it before” argument are arguments for making orientation a protected class and using strict scrutiny on any law which appears to discriminate against gays. Consider, why is sex a protected class? Because of the documented historical unequal treatment of women. Why is race a protected class? Because of the documented historical unequal treatment of blacks (and others). So here’s Breyer, Kennedy, and Roberts all bringing up an instance of documented historical unequal treatment of gays: unlike straights, they have not ever been given the right to form state-recognized and state-protected family units (i.e. straights can, gays can’t).

  • Doug Little

    eric @46,

    Excellent point. Hind sight is 20/20 though. I’m sure the Ms. Bonauto missed a few opportunities but it’s got to be a very difficult position to be in. I’m glad that the decision doesn’t just depend on oral arguments and debating skills. I would be interested to know how much prep time these guys do before going before the Supremes.

  • doublereed

    @45 tomh

    Didn’t they say in the argument that states generally recognize those marriages performed in other states that they don’t consider legal?