Tap here to turn on desktop notifications to get the news sent straight to you. What is the Supreme Court thinking about marriage? They just heard oral argument from gay couples, from the states that want to preserve their bans, and from the U.
And we can make a couple guesses about what's going through their heads. First, a few basics. There are nine justices. Conventional wisdom is that four are sympathetic to marriage equality. Four are probably opposed. And one is probably somewhere in the middle. The ones who are opposed are really opposed, starting with Scalia. He said marriage equality amounts to "a requirement of action which is unpalatable to many of our citizens for religious reasons.
But, of course that's ridiculous. Yeah, there are nondiscrimination laws that require businesses to treat customers equally. But, he's mixing up non-discrimination laws with the First Amendment, which protects private religious acts. Religious officials can choose who to associate with in private. But this case is about the government. And the government, which has to represent everyone, can't pick and choose who the law protects.
Justice Roberts also seemed to be coming down against marriage equality. 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. This is also ridiculous. I don't know much about straight couples.
But I'm pretty sure they don't give Valentine's Day cards that say, "My favorite thing about you is that you're the opposite sex. But the states are continuing to cling to this idea that marriage has to be about the ability to reproduce. According to John Bursch, the states' attorney, granting marriage equality for gays and lesbians would mean " marriage and children don't have anything to do with each other ," and that means we would have "more children outside of marriage.
This is the same argument that the anti-gay side made two years ago in the Windsor case. And how did that work out for them? Only Alito and Thomas signed on to that reasoning with Windsor. The other seven didn't buy it. Speaking of Alito, during this most recent argument, he brought up polygamy as a reason to deny marriage equality.
He asked, in essence: If we're going to let gays and lesbians get married, why not groups of people? This comes up a lot, and it can be a hard question to answer.
But the easiest response is that plural marriage is just way more complicated, so it's a much larger shift than simply letting gays and lesbians marry. For example, if one member of the group divorces, do any of the remaining spouses get child custody? If there's a disagreement over medical care in an emergency, which spouse has more authority? These are questions that could be answered, but polygamy simply isn't at issue in this case. In part because plural marriages are just as heterosexual as they are queer.
You could easily ask, "Doesn't straight marriage lead to polygamy? I mentioned Thomas a minute ago. Here's what he had to say during oral argument: Okay, he didn't say anything.
But he has written things. Back in February he wanted to the court to block marriage from starting in Alabama, saying they should have "preserved the status quo.
Couples are denied their rights, which has ramifications from child custody to driver licenses to death certificates. Look at what the status quo means: Gay couples separated in hospitals. Losing their life savings when one passes away. Having a marriage license revoked when they cross state lines. Spending thousands of dollars to adopt their own children because the state won't recognize both parents.
That's what Thomas wants to preserve? Maybe that's why he kept quiet in court. It sounds pretty awful when you say it out loud. Those four justices -- Scalia, Roberts, Alito and Thomas -- are probably going to rule against marriage equality. On the other side, we have Ruth Bader Ginsberg, who did not let the states' attorney get away with anything. When he said that letting gay couples marry would harm the state's ability to encourage heterosexual marriage, she said "How could that be?
You're not taking anything away anything from heterosexual couples. Bursch stammered at that, and avoided it at first. Eventually Scalia gave him a way out: But Breyer wouldn't let him go. What's the empirical connection?
That's what I have a problem with in your argument. One is that he called marriage a "fundamental liberty. It is a fundamental right. Kennedy's the swing vote here. He's probably the one who'll decide one way or the other.
And he was pretty hard to read. On one hand, he said, "This definition And it's very difficult for the court to say 'Oh well, we know better. But on the other hand, he really let the states' attorney have it. When Bursch tried to claim that marriage should only be for people who can procreate, Kennedy asked why it matters.
Gay couples, he said, have "a dignity that can be fulfilled. He said that marriage isn't supposed to bestow dignity, to which Kennedy said, "I thought that was the whole purpose of marriage.
Bursch stuck to his argument, saying that the dignity of marriage is just an accident. That marriage is really just about "benefits and burdens, but not necessarily. On one side, there's gay couples saying that marriage bans deny them dignity. On the other, there's states saying they have no reason to afford gay couples any dignity. And between them, there's the swing vote, a justice who has already said that dignity for gay couples is baked into the Constitution.
How do you think it's going to go? But I have to say, my favorite moment came at the end of Mary Bonauto's first round of argument.
After debating whether marriage equality flows from the Constitution or from the states, she concluded by saying, "It's not about the court versus the states.
It's about the individual making the choice to marry and with whom to marry, or the government. We have two months until the end of June.