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.
