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Justices Question Redefining Millennia-Old Institution of Marriage


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John Burger - published on 04/28/15 - updated on 06/08/17

Back-and-forth with gay marriage attorney shows high court reluctance

The attorney arguing for same-sex "marriage" before the Supreme Court Tuesday hopes that the traditional definition of marriage will fall. 

Mary Bonauto, answering a question posed by Justice Samuel Alito, also said she believes that "times can blind" people to more open definitions of institutions like marriage.

The high court devoted an almost unheard of two hours to oral arguments to help them come to a decision on two questions they are expected to reach by June: does the 14th Amendment to the Constitution of the United States require states to allow marriage between two persons of the same sex, and must a state recognize the same-sex "marriage" entered into by a couple in another state?

Bonauto, a longtime gay rights activist, began Tuesday’s proceedings in challenging the laws in Ohio and three other states. But her opening statement was soon interrupted by Justice Ruth Bader Ginsburg. In answering Ginsburg, Bonauto affirmed that states have the right to regulate domestic issues such as marriage, as long as their laws do not violate the Constitution. 

Chief Justice John G. Roberts, Jr., jumped in, picking up on Bonauto’s statement that "a whole class of people … are denied the equal right to be able to join in this very extensive government institution that provides protection for families."

"You say join in the institution," Roberts said. "The argument on the other side is that they’re seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable."

"I hope not, Your Honor, because what we’re really talking about here is a class of people who are, by State laws, excluded from being able to participate in this institution, Bonauto said.

Justice Anthony Kennedy, whom many believe will be the deciding vote in this case, jumped in to remind Bonauto that the Court was being asked to change something that has existed for millenia.

"The word that keeps coming back to me in this case is—is millennia, plus time," he said. "First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it’s been—it was about—about the same time between Brown and Loving as between Lawrence and this case. It’s about 10 years."

"This definition has been with us for millennia," he said, "And it’s very difficult for the Court to say, ‘Oh well, we know better.’" 

Brown v. Board of Education in 1954 prohibited racially-segregated schools. Loving v. Virginia in 1967 struck down state prohibitions agains interracial marriage. Lawrence v. Texas was the 2003 case that struck down state laws that criminalized sodomy. 

Justice Samuel A. Alito asked Bonauto how she would account for the fact that no nation or culture before the end of the 20th century recognized marriage between two people of the same sex. “Can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”

Bonauto responded that “times can blind and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded.”

The attorney also received a grilling from Justice Stephen G. Breyer, who challenged her: “Suddenly you want nine people outside the ballot box to require States that don’t want to do it to change what you’ve heard is change what marriage is to include gay people. Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage.”

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