The Supreme Court declined to rule that every state in the country must recognize same-sex marriage, but do not be fooled. Five justices have taken the position that there is no rationale other than hostility to homosexuals for defining marriage as the union of a man and a woman. When they believe the time is right to issue a more sweeping ruling, they will. This issue will no longer be one on which democratic deliberation is allowed.
The specific case in which the Court made its proclivities clear concerned the Defense of Marriage Act, in which Congress defined marriage as the union of a man and a woman for the purposes of federal law. Justice Anthony Kennedy, writing for the four Democratic appointees and himself, argues that the motivation for the law was a “bare congressional desire to harm a politically unpopular group.” The Court is not saying merely that supporters of the historic understanding of marriage are wrong, or even merely that this understanding runs afoul of the Constitution (in some unspecified way: As Justice Antonin Scalia’s dissent notes, Kennedy’s opinion is hard to pin down on the question). It is saying that the supporters bring nothing but bigotry to the discussion.
The real argument for continuing to treat marriage as the union of a man and a woman is that marriage and marriage law exist to channel sexual behavior in a way that promotes the flourishing of children. They exist, that is, to solve a problem that does not arise in same-sex unions: that heterosexual sex often gives rise to children. They exist to uphold the ideal that children need the mother and father who created them to stay in a stable relationship together. Recognition of same-sex marriage means that the institution is no longer about those things.
There are, of course, coherent arguments against this view, and while we do not think them ultimately successful, an increasing number of people clearly disagree with our conclusion.
What should have mattered in court was that weighing that question is not their business. Justice Samuel Alito’s dissent got it right. “Same-sex marriage presents a highly emotional and important question of public policy — but not a difficult question of constitutional law,” he writes. The Constitution is neutral on whether governmental recognition of same-sex marriage will undermine the institution of marriage, strengthen it, or have no effect at all; it does not contemplate the question.
Five justices could not resist the temptation to pretend that the Constitution picks a side of this battle, and condemns the other — Scalia sees this plainly — as moral monsters. The justices have not yet decided that we who disagree are to be permitted no influence whatsoever on the country’s marriage laws, but the clock is ticking, and this Court has no patience for self-government.