It’s obviously subjective on my part, but U.S. Supreme Court Justice Antonin Scalia’s relative restraint at yesterday’s landmark argument seemed ominous for the same-sex couples who were contending that states are constitutionally required to solemnize and recognize their marriages.
His colleague Samuel Alito was more often the one aggressively probing the reasoning of the couples’ counsel, Mary Bonauto. And when the liberal chorus of Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer began spiritedly beating up Michigan’s attorney, as he tried to defend that state’s law that forbids same-sex marriages, Scalia was uncharacteristically quiet. For the most part, he didn’t bother to come to Bursch’s rescue. To me, Scalia seemed to be thinking, “Let them squawk. We have the votes.”
It was a part of a day of severe reality checks for the gay-rights juggernaut. An aura of inevitability had built up surrounding yesterday’s landmark U.S. Supreme Court arguments in the four consolidated cases known as Obergefell v. Hodges. In just a couple of generations, the bipartisan gay-rights movement has won dignity, respect, and nearly full citizenship for a group that for thousands of years—and within very recent living memory—had been ostracized, marginalized, and even criminalized.
But yesterday’s argument seemed more like a cold shower than a crowning achievement. At least four of nine justices asked very skeptical questions of Bonauto, the attorney for the same-sex couples, while a fifth—the always silent Clarence Thomas—was assumed to be irretrievably opposed to her arguments.
The most worrisome news, of course, was that Anthony Kennedy—the author of the last three pro-gay rights rulings and the key to almost any imaginable LGBT victory here— was expressing hesitance to take the final step now being urged upon the Court.
“The word that keeps coming back to me in this case is millennia,” he said. “This definition”—i.e., marriage being a union between a man and a woman—“has been with us for millennia. It’s very difficult for the court to say, oh, well, we know better.”
To be sure, as has been widely reported, Kennedy also asked some tough questions of John Bursch, the special assistant attorney general of Michigan, who was defending laws in his state, Kentucky, Ohio, and Tennessee which bar same-sex marriage. So it is still possible that the same-sex couples could prevail.
But, to me, yesterday’s oral arguments also seemed to dash the hopes of those who imagined that the youthful Chief Justice John Roberts, Jr., still just 60 after ten years on the bench, might look to his legacy, and vote to endorse the seemingly inevitable: the total legal equality of gays and lesbians. The thinking was that Roberts, despite his conservative instincts, might be loathe to join a ruling that cut against the grain of history.
Yesterday, Roberts looked comfortable with the prospect of rebuffing the petitioners. “You’re not seeking to join the institution [of marriage],” he told Bonauto, “you’re seeking to change what the institution is. The fundamental core of the institution is the opposite sex relationship.”
True, some are still pinning grand hopes on a single question Roberts asked of Bursch—asking whether laws against same-sex marriage might amount to sex discrimination. These people suspect he’s sniffing out some surprise, round-about way to concur with the liberals.
But for the most part Roberts hewed to very mainstream, conservative lines yesterday. “If you prevail here, there will be no more debate,” he told Bonauto. “Closing off 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.”
A good place to begin analysis of yesterday’s argument might be an odd joke Justice Scalia cracked. After Bonauto finished her argument, and before Solicitor General Donald Verrilli, Jr., representing the United States, started his, in support of Bonauto’s position, a heckler began shouting. He yelled that the justices would “burn in hell” if they recognized a constitutional right to same-sex marriage. (I wasn’t present. I listened to the official tape, which the Court made available with unprecedented speed—less than 45 minutes after this portion of the argument was completed—and then I read the official transcripts, made available that afternoon.)
While Chief Justice Roberts gave Verrilli a moment to compose himself after the outburst, Justice Scalia joked, “It was rather refreshing, actually.” There was some nervous laughter.
It’s obviously perilous to parse jokes, and even the person cracking one may not know precisely what prompts one. But my interpretation is that what Scalia found “refreshing” was that someone in the courtroom was finally broaching two sentiments that obviously had a great deal to do with the existence of the laws being scrutinized yesterday, but which no one was discussing because the sentiments had become, in recent years, unspeakable, offensive, and clearly unconstitutional bases for defending any law. The sentiments were (a) that the speaker categorically hated homosexuals and (b) that he did so because he felt that God hated homosexuals.
In 1986, when the Court upheld the constitutionality of criminal laws against consensual homosexual conduct (then called sodomy) in Bowers v. Hardwick, expressing moral opprobrium for homosexual acts and those who committed them was legally unremarkable. (“Condemnation of [homosexual] practices is firmly rooted in Judaeo-Christian moral and ethical standards,” Chief Justice Warren Burger wrote in his concurring opinion in that case.)
But that view began to crumble in 1996, when the Court struck down a state constitutional amendment that disadvantaged gays and lesbians in Romer v. Evans. On that occasion Justice Kennedy wrote for the Court that a “bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” (Dissenting, Scalia argued that it was not unconstitutional for the state to pass laws based simply on “moral disapproval of homosexual conduct.”) By 2003, when the Court, in Lawrence v. Texas, overruled Bowers and struck down criminal sodomy laws, hating people for committing homosexual acts became taboo.
Since then, justifying laws that disadvantage gays and lesbians has become a tricky, uphill battle. In yesterday’s argument, Bursch argued that Michigan’s refusal to recognize same-sex marriages had something to do “keeping kids and their biological moms and dads together whenever possible.” The claim was torturous to defend and almost unintelligible. How would recognizing same-sex marriages defeat those goals? And given that Michigan also encourages adoption, and permits same-sex couples to adopt, wouldn’t it want to promote stable settings for those children, too?
So the crucial recurring question in yesterday’s argument was: If marriage is a fundamental right—and the Court has frequently held that it is—why are these states denying that right to same-sex couples? And, remember, a permissible answer to this question can no longer be that the state simply feels “animus” toward same-sex couples.
Conservative justices seemed to have three main answers to this question.
One answer—a semantic one—is implicit in the remark I already quoted Justice Roberts making: “You’re not seeking to join the institution [of marriage], you’re seeking to change what the institution is.” What he’s saying, then, is that the states aren’t denying anybody a right at all. The right has always been defined, since time immemorial, in a way that happens to exclude same-sex couples.
A second, related answer is the one Kennedy suggested, relating to the “millennia.” If cultures and societies for thousands of years have defined marriage as being between a man and a woman, can’t we assume that there must be some reason, other than animus, motivating that choice—even if its hard to articulate what it is?
“How do you account for the fact,” asked Justice Alito, “that until the end of twentieth century”—specifically, 2001, when the Netherlands became the first—”there never was a nation or culture that recognized marriage between two people of same sex? Now, can we infer from that, that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way, or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”
In this context, Justice Alito brought up ancient Greek society in particular. Plato wrote “approvingly of same-sex relationships,” he observed, and yet the Greeks didn’t recognize same-sex marriage. “So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”
A third conservative answer for why the fundamental right to marry was being denied to same-sex couples was: We don’t need to give an answer. The state’s practice of excluding same-sex couples from marriage, Justice Scalia argued, need not serve a coherent state interest in itself, so long as it can’t be shown to be motivated by discrimination or animus. So when Sotomayor asked Bursch to explain how barring same-sex marriage would promote Michigan’s goal of “keeping kids and their biological moms and dads together whenever possible,” Scalia interrupted: “Excuse me. Do you have to answer that question? … Is that your burden? I thought your burden was simply to show that the state’s reason . . . is a reason inapplicable to same-sex couples.”
Bonauto was slow to respond to Justice Kennedy’s important, and foreseeable, “millennia” question. Even Justice Breyer—seemingly receptive to the same-sex couples arguments—upbraided Bonauto for not answering more promptly and directly. Justice Sotomayor, evidently trying to come to her aid, invited her to discuss the marginalization, discrimination, and repression to which gays and lesbians had been subject over thousands of years in the societies whose conduct was now being cited as precedential. But Bonauto didn’t take the bait.
She did eventually offer some answers. “I don’t know what other societies assumed,” she said, “but I do believe that times can blind and it takes time to see stereotypes and to see the common humanity of people who had once been ignored and excluded.”
She also emphasized that none of those other societies had a fourteenth amendment, guaranteeing every resident “equal protection of the laws.” Said Bonauto: “Not every legal system around the world has the kind of system with its explicit constitutional guarantees for all persons of liberty and equality, and that immediately sets the United States off from so many countries.”
In late June we’ll find out if these arguments put Justice’s Kennedy’s qualms at rest. It seems to be in his hands now.