(See here for a link to the court’s since-amended opinion and speculation about why it was amended.)
The opinion leads with a long block quote from Mildred Loving and, from there, it’s clear where the court intends to go.
Mildred Loving, of course, was the courageous black woman who, along with her white husband, brought the historic lawsuit challenging a Virginia law that resulted in the U.S. Supreme Court rightly ruling against marriage as a race-based social institution.
By the end of yesterday’s same-sex marriage opinion, we’re told that, under the U.S. Constitution, marriage must also be a genderless institution.
Yesterday’s opinion then goes on to tell us that same-sex marriage is not a “‘new’ creation” but rather the same marriage right exercised by the “vast majority of Virginia’s adult citizens.”
In one sense, this conclusion is not surprising. The court at one point seems to envision marriage as an institution grounded in “loving, intimate and lasting relationships” that are “created through the exercise of sacred, personal choices” that “must be free from unwarranted government interference.”
But curious minds might ask why the government has any interest at all in regulating such a “sacred,” “intimate,” and “personal” relationship.
The answer, of course, is that the unique union between a man and a woman is the only type of union that produces babies. Everyone, gay or straight, is, so to speak, “born this way.” This reality holds whether the male-female union is formed in a petri dish, through a catheter, or in the old fashioned way.
Once babies are created, society has an interest in their fathers and mothers raising, nurturing, educating, and supporting them. Fathers can be anywhere on earth nine months after the procreative act. Government regulates marriage to increase the odds they’ll be close to mothers and children at birth and for life.
In yesterday’s decision, the court refers condescendingly to arguments about procreation and children rearing as the “‘for-the-children’ rationale” — yes the court puts scare quotes around the “for-the-children” part.
Spoiler alert: The court is not persuaded by the whole “moms, dads, and children thing.”
Which is interesting because, at one point, the court claims to “endorse” a statement made in oral argument by an attorney defending Virginia’s marriage law. (That would not be the state attorney general, who disavowed the law just days after taking office.)
The statement endorsed by the court was that “marriage exists to provide structure and stability for the benefit of the child, giving them every opportunity possible to know, to be loved by and raised by a mom and dad who are responsible for their existence.”
I, not the court, added the italics to the “mom and dad” part of that sentence. In a short footnote, the court seems to try to address the problem of supporting same-sex marriage while endorsing these words, but it’s not clear the court fully appreciated their significance to the defense of marriage as traditionally understood.
In fact, it would be understandable if the court failed to appreciate a lot of things about the marriage debate given that it issued its 41-page opinion just days after oral argument. At oral argument the court reportedly assured the parties they would hear from it “soon” and the court kept its word.
The rush is on, and folks like the federal judge in this case are speeding to put their money on genderless marriage. “We have arrived,” the court writes in conclusion, “upon another moment in history when We the People becomes more inclusive, and our freedom more perfect.”
Most Americans would probably prefer to avoid the issue, but when they can’t they probably believe, as this court seems to, that genderless marriage doesn’t change marriage, it just adds a bit to it.
Sooner or later, more of them will begin to realize this is not true. Same-sex marriage doesn’t just add to traditional marriage, it condemns the traditional understanding of marriage as a form of irrational prejudice and bigotry. And the next step is punishing people and groups that continue to believe in and speak for marriage as a unique relationship between a man and a woman.
Between marriage as a scheme of government regulation for affirming the emotional commitments of adults versus binding fathers to mothers and children, we should choose the latter.
But the marriage debate is also about whether or not marriage actually means something more fundamental than whatever the government says it means. And, if so, whether a self-governing people have the freedom to honor that meaning in law through democratic processes.
This is a different kind of freedom than the “more perfect” freedom that yesterday’s court decision envisions.
— Thomas M. Messner is an independent policy analyst.