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Justices Question Redefining Millennia-Old Institution of Marriage

Gay rights advocate waves rainbow flag in front of US Supreme Court


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John Burger - published on 04/28/15

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.”

But she vehemently denied, in response to a question by Alito, that an affirmative ruling in Obergefell would lead to permitting more than two persons to enter into a marriage.

“I assume the States would rush in and say that when you’re talking about multiple people joining into a relationship, that that is not the same thing that we’ve had in marriage, which is on the mutual support and consent of two people,” she said. “If there’s a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis.”

Justice Antonin Scalia raised the issue of religious freedom, asking Bonauto whether, if the Court finds same-sex marriage constitutional, a member of the clergy who is authorized by the state to perform marriages can decline to marry two members of the same sex.

Bonauto said “no clergy is forced to marry any couple that they don’t want to marry.”

Kagan pointed out that in Judaism, rabbis can, and some do, refuse to marry a Jew to a non-Jew.

Later, in the exchange with John J. Bursch, the former Michigan solicitor general who defended his state’s ban on same-sex marriage, Ginsburg and Justice Sonia Sotomayor questioned how allowing same-sex couples to marry would harm heterosexual marriages.

“You are not taking away anything from heterosexual couples,” Ginsburg said.

Bursch said that if people no longer believe that “marriage and creating children have anything to do with each other,” there will be more children born out of wedlock, which creates problems for society.

“Marriage did not develop to deny dignity to anyone, but to serve purpose that arise by their nature from biology,” Bursch said.

Reaction to the proceedings was mixed. Brian Brown, president of the National Organization for Marriage, said Kennedy’s use of the word "millennia" caught people off guard and provided hope that the Court may in fact shy away from changing the age-old definition of marriage.

"A lot of folks on the other side look at this like it’s a done deal, and I think a lot of Kennedy’s questioning, especially about the process, about whether the Court should be the one to decide an issue as important as the future of marriage, show that it’s not a done deal and that we should be hopeful that ultimately we will win before the Supreme Court," said Brown, who led some 15,000 people in a March for Marriage in Washington three days before the hearing. 

Archbishop Joseph E. Kurtz of Louisville, Kentucky, president of the U.S. Conference of Catholic Bishops, said in a statement, “Today is a moment of great consequence. Marriage is a perennial institution, with deep roots in who we are and in our nation’s culture and laws. Marriage is and always will be the union between one man and one woman. This truth is inseparable from the duty to honor the God-given dignity of every human person. We pray that the justices will uphold the responsibility of states to protect the beautiful truth of marriage, which concerns the essential well-being of the nation, especially children. Children have a basic right, wherever possible, to know and be loved by their mother and father together. The Church will always defend this right and looks to people of good will to continue this debate with charity and civility.”

"We could be headed for another unjust decision like Dred Scott (an African American is not a person) or Buck v Bell (the indigent should be sterilized—“Two generations of imbeciles is enough,” said Oliver Wendell Holmes), or Roe v Wade," said Bill May, president of Catholics for the Common Good. He said that the Marriage Reality Movement, a project of Catholics for the Common Good has developed a strategy for resistance "until the true meaning of marriage is restored."

"Chief Justice Roberts made the most cogent point when he told the petitioners’ attorney, ‘You are not seeking to join the institution. You are seeking to change it,’” May said. "That should have been the focus of the case, what is the consequence of eliminating the only institution that unites children with their mothers and fathers rather than whether or not same-sex couples should be allowed to participate in marriage."

May found that discussion in court "reflected so much confusion among the justices, often getting distracted by issues that have nothing to do with marriage." He noted that in an exchange with the Michigan attorney general, Justice Kennedy "implied that marriage should be redefined to recognize the bond between people in gay lifestyles who are parenting. He failed to recognize these are children from broken families or have somehow lost their mother or father or both. Why should marriage be redefined to accommodate adoptive same-sex parents when there is no requirement that adoption only be permitted by married couples?"

In addition, he said, Justice Stephen Breyer’s contention that the courts have a record of ruling on a fundamental right to marry that cannot be denied for “purely religious reasons” seems to reflect the misrepresentations of history by the petitioners rather than the facts in case law. The first case dealing with the right to marry was filed based on denial of religious liberty to a mixed race couple who was prevented from receiving the Sacrament of Matrimony in the Catholic Church. The case that overturned bans on interracial marriage for the nation was decided based on the right to procreate, not marry. Bans on interracial marriage were about eugenics. Since, at the time, there was a stigma attached with having children outside of marriage, the ban on interracial marriage was a ploy to maintain racial purity.

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