Nobody knows how the Supreme Court will ultimately rule on the two cases concerning so-called same-sex “marriage,” the California Proposition 8 case and the Defense of Marriage Act (DOMA) case, on which the high court recently heard two days of testimony. However, some of the comments made by several justices in the course of the hearings on these two cases point to at least one possible way, dismaying to contemplate, in which the court might well invalidate DOMA in particular, in spite of what would seem to be the unassailable truth it represents in affirming that a true marriage must be a conjugal relationship between a man and a woman.
The non-lawyer citizen could not but be disconcerted by the way in which the court found it necessary to go into non-substantive issues such as whether the two cases were properly before the court at all, since neither the state of California nor the federal government was willing to defend in court the law pertaining to it; and hence the question was raised whether those who were defending these laws had the standing to do so. With the whole world watching, and the absolutely fundamental social question of what marriage is at stake, the justices nevertheless seemed unconcerned about dwelling on what seemed to be legal quibbles, sometmes even appearing to be little better than bickering pettifoggers themselves.
Yet sandwiched in between what seemed to be some relatively trivial and even inconsequential procedural questions, glimpses were afforded of how some of the justices apparently view the legal question of marriage itself, and they proved to be even more disconcerting than the procedural wrangling.
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Justice Ruth Bader Ginsburg, for example, averred that “if we are totally for the states’ decision that there is a marriage between two people, for the federal government then to come in to say: no joint return, no marital deduction, no Social Security benefits, your spouse is sick, but you can’t get leave—one might well ask, ‘What kind of marriage is that?’” What kind indeed? This kind of characterization, though, begs the question of whether the relationship being referred to is a marriage. Instead, it simply assumes that to be the case.
Similarly, Justice Sonia Sotomayer spoke of how “Congress can create a class they don’t like—here, homosexuals—or a class they consider suspect in the marriage category…and decide benefits on that basis, when they themselves have no interest in the actual institution of marriage.” Again, this simply assumes about the “class” whose “marriages” the justice is referring to truly are marriages. Somewhat surprisingly, Justice Sotomayer came out here as a champion of federalism when she asked: “What gives the federal government the right to be concerned at all about the definition of marriage?”
Justice Elena Kagan denied that marriage in its essence had anything to do with procreation when she advanced the (specious) argument that the law allows older or sterile men and women to marry. But marriage in its essence does involve a complementary physical relationship ordered to procreation. As everybody knows, not every congjugal act results in a pregnancy, any more than does such an act performed by a sterile or older person; but even in the latter cases it remains the same kind of act that can and often does result in a pregnancy. This, however, cannot ever be predicated of homosexual acts; the latter are not the same kinds of acts as true marital or conjugal acts performed by men and women together. Justice Kagan got this wrong.
She also alleged that in enacting DOMA Congress was motivated merely by bias against homosexuals. She read from a House of Representatives report which said inter alia that “Congress decided…to express moral disapproval of homosexuality”—thus confirming the conclusion of the judge in the California Propostion 8 case, who could find no reason to judge same-sex unions to be non-marriages except prejudice against homosexuals.
All three of the justices quoted here belong to the reliable “liberal” wing of the court. The fourth justice considered to be consistently liberal, Stephen Breyer, made the same point as Justice Kagan when he observed that “couples that aren’t gay but can’t have children get married all the time.” Yes, because belonging to different sexes they can get married.
Both the language and the substance of what all four of these liberal justices of the Supreme Court say about same-sex relationships, however, appear to take for granted that these relationships already are, in fact, marriages. The justices themselves do not really understand what marriages essentially are—judging by their remarks quoted here on the subject—but they nevertheless seem to be utterly confident that homosexual liaisons do qualify as marriages. They do not argue this point or offer evidence for it; they simply assume it. Evidently, they do not think there is any need to prove or establish it with facts or arguments, so obvious does the truth of it seems to appear to them.
Moreover, they certainly make no effort whatsover to refute the standard and abundant arguments that deny the status of marriage to these same-sex relationships. Again, they do not seem to think any such refutations are at all called for or necessary. Meanwhile, a couple of them go on strongly to deplore that the benefits which the law normally grants to married couples are being “denied” in the case of these homosexual relationships assumed to be marriages. The clear assumption here seems to be that these benefits should be accorded to these relationships. Again, this is not argued or proved; it is simply taken for granted.
Kennedy Takes A Slightly Different Approach
A fifth Supreme Court justice, Anthony Kennedy, whose vote with these four would constitute a majority, did not treat the matter in the same way as the other justices. They contend, in effect, that the same-sex relationships are marriages when the partners say that they are. In other words, they evidently believe, and take it for granted, that marriage has already been redefined—by society’s current acceptance, tacit or otherwise, of the claims of same-sex couples and their supporters.
Justice Kennedy took a slightly different tack. Like Justice Sotomayer, he rather surprisingly turned out to be a strong proponent of federalism. He warned of the “risk” involved in the fact that DOMA infringes upon the responsibility of the states in defining and regulating marriage. He characterized DOMA as “inconsistent” because while it purports to accept the authority of the states to define and regulate marriage, it nevertheless then turns around and imposes limits on the authority of those same states.
While conceding (as was argued before the court) that references to marriage as occurring between a man and a woman are found in some 1,100 federal laws and statutes—which would seem to suggest that the federal government has to define marriage for its purposes, if there is any question about it—Justice Kennedy also agreed that the federal government is necessarily “intertwined with the citizen’s day-to-day life.” But he nevertheless argued that with DOMA “we are at real risk of running in conflict with what has always been the state’s police power, which is to regulate marriage, divorce, custody…” (emphasis added).
In the end, Justice Kennedy also sided with the other four justices, who evidently believe that denial of the benefits of marriage to same-sex unions constitutes an injustice. Citing an amicus brief to the effect that some “40,000 children in California live with same-sex parents,” and presuming to speak for those children, he confidently asserted that “they want their parents to have full recognition and full status…The voice of those children is important,” he added, as if his citation truly and effectively established him as their spokesman.
Thus, five of the nine Supreme Court justices seem to have effectively taken the position that same-sex relationships indeed are “marriages,” and that for them therefore the principal issue in need of remedy by the high court is the “injustice” of the denial to same-sex couples (and their children) of the benefits of marriage which the law has always recognized.
The premise and argumentation here seem to be that, in the American system under the Constitution, the various states have the power to define and regulate marriage. Nine states and the District of Columbia now have defined it to include same-sex relationships. Ergo, in these jurisdictions same-sex unions are marriages. Nothing further therefore remains to be decided or done by the high court except to give them the benefits that pertain to marriage.
All the appeals, pleas, rallies, demonstrations, exhortations, law review articles, amicus briefs, etc., calling on the Supreme Court not to “redefine marriage,” need not be considered at all, but can simply be by-passed and left aside. Marriage already has been redefined in nine states and the District of Columbia. The court does not even have to address all the other issues that has been raised. All that needs to be done is to extend the legal benefits of marriage to same-sex unions in those nine states and the District of Coumbia by invalidating the part of DOMA that currently excludes them from those benefits. Presumably the part of DOMA that guarantees that other states need not recognize same-sex unions defined as marriages by other states could even be left in place. If states truly have the authority to “define” marriage under the Constitution, then the states that have redefined it have acted in accordance with the authority they have, and nothing more needs to be said or done about it.
Majority May Have Already Redefined Marriage
Could the U.S. Supreme Court really rule in such a way as this? As already noted above, it is dismaying to contemplate such a thing. But as also noted above, nobody knows how the court will rule. The focus here has been on things the justices plainly did say, though one can only speculate on how they might apply what they said in an actual ruling. Moreover, they said other things besides what has been quoted here, so it remains unknown how they will rule.
Still, the language employed by a majority of the justices in the hearings quite clearly did indicate that they believe that marriage has effectively been redefined at least in those jurisdictions that have legalized same-sex unions as marriages And so it would seem that the court could indeed rule on the basis of that belief.
It was surely a mistake on the part of some observers to imagine that the idiosyncratic Justice Anthony Kennedy could ever be counted on to help preserve traditional marriage simply because he had recently stated that “a democracy should not be dependent for its major decisons on what nine unelected people from a narrow background have to say.” He also complained during the hearings that the court had been led into “uncharted waters.” But he himself probably bore greater responsibility for where the court now found itself than any other individual. For it was none other than Anthony Kennedy who authored the decision in the 2003 Lawrence v. Texas Supreme Court case that legalized sodomy, or sexual relations between two men. If sodomy itself is not illegal, it is hard to see how the same-sex couplings held to constitute “marriages” could continue to be judged illegal.
Justice Kennedy is also the author of the notorious 1992 Planned Parenthood v. Casey Supreme Court decision which ruled that abortion on demand had to remain legal because, after all, people generally wanted it and needed it; and because, in Kennedy’s words, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
With a justice capable of this kind of thinking supplying the “swing vote”in the ruling on marriage that the Supreme Court is supposed to deliver in June, nobody should be in the least surprised if the high court fails to uphold the understanding of marriage common to the last ten thousand years or so of human civilization.