Bench Memos

Marriage in the Court

From the back and forth this morning, it appears that the issue of the Supreme Court’s “standing” is not likely to be decisive. Even Justice Kennedy seemed to be concerned to answer that question — and put it out of the way. One had the sense that Justice Sotomayor saw that this argument was not going to succeed, so she began shifting to argument on the substance of the case. The “substance” was debate over the meaning of marriage itself, and whether it has become irrational and bigoted to think that marriage claims its coherence only as a legal union of a man and woman.

Coming out of the courtroom today, the defenders of marriage were decorously upbeat: One savvy observer thought that the odds on Kennedy tilted to the conservative side were about 70 percent. The main point of concern for traditional-marriage advocates was Kennedy’s musing about 37,000 children living in households headed by gay or lesbian couples: Were their parents to be denied the standing of marriage, and they in turn branded as offspring of some sub-legal ménage? But of course the question is no different here from the plight of children in polygamous unions. And what of the children today living with parents who have never married? Surely they would have to be recognized as “harmed” in the same way; would the remedy be to compel the parents to marry?

It was regrettable and surprising as to how much weight seemed to be placed on the findings of social science — on whether children have fared as well with same-sex parents as with their natural parents. There have been only several years of experience with children raised with same-sex unions that are legal, and so the conservative justices treated this as an open question, and appealed for restraint: We should not be so quick to take this recent novelty in the law and impose it on the whole country. In point of fact, even the evidence accumulated thus far raises serious doubts that children fare quite as well in households led by gay or lesbian couples. But the question may be essentially beside the point in principle: Surely we will find children of some gays and lesbians doing better than children in some dysfunctional heterosexual families. The question is whether one form of marriage is in principle preferable to any other. Marriage finds its coherence as a framework of legal commitment to envelop the begetting and nurturing of children. It is built on the natural complementarity of men and women; that purpose marks the reason that there will always be . . . men and women, because of reproduction, or begetting. If marriage is detached from that central function, and those anchoring facts, what ground of principle would confine it to a relation between two people? What of those people who say that their loves are not confined to a coupling, but woven into an ensemble of three or four, or more?

There was a moment critically missed, then, when Justice Scalia invited Charles Cooper, arguing for traditional marriage, to draw out some of the “concrete” and worrisome results that could spring from these changes with regard to children. To venture an answer here is to make a prediction or conjecture. But there was no need for predictions and conjectures: By some estimates there are about 500,000 “polyamorous” households in the country. The day after the Court installs same-sex marriage, we are virtually certain to see in court one or more of these people, insisting that their loves be honored with the name of “marriage.” They too will seek the “equal protection of the laws.” The proper question for his opponent, Ted Olson, was, on what principle would you deny marriage to these people?

But the worst moment for Olson clearly came when Justice Scalia asked him just when, suddenly, it became unconstitutional to confine marriage in the law to one man and one woman. Olson had to fall back upon a notion of a culture shifting in its opinions from one period to another:

MR. OLSON: It was . . . when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­-

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date , th
is is an evolutionary cycle.

But with racial discrimination we could truly say that it was wrong in principle to bar marriage across racial lines, even if the framers of the 14th Amendment did not recognize that implication springing from their own principles. And yet, Ted Olson evidently could not make a comparable claim here: He could not quite say yet that the rejection of homosexual marriage was as wrong in 1789, or as unconstitutional in 1868 as it is today. For one of the most seasoned advocates before the Supreme Court, this was not a day to be put on the same plane as his performance in Bush v. Gore.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College, the founder of the James Wilson Institute on Natural Rights & the American Founding, and the architect of the Born-Alive Infants Protection Acts.


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