After a drawn-out battle at the state level, with trials and appeals creating a complex legal stew, same-sex marriage has made it back to the Supreme Court, to the applause of some and the bemoaning of others. Meanwhile, 21 states have struck down same-sex marriage bans with others in legal limbo until the court decides on whether to direct the issue back to the state level, something that would create quite the legal nightmare.
In the days and weeks to come, there will likely be many surprises in the Supreme Court argument. One thing that does not come as a surprise in the preliminary arguments is the split of the justices and some of the opinions held. The transcript from Tuesday’s opening arguments was made available quickly after the proceedings, and audio files of the arguments were also made public.
1. Definitions and state jurisdiction
Like many major civil rights cases, the issue of same-sex marriage is largely about defining terms: defining them legally, defining them historically, defining them culturally. And as Justice Antonin Scalia argues so forcefully, it’s not just what the definition is but who should be defining it, a point many Republicans and gay marriage opponents have been very vocal on.
“Well, the issue, of course, is … not whether there should be same-sex marriage, but who should decide the point,” said Scalia. “You’re asking us to — to decide it for this society when no other society until 2001 ever had it.” This is a point that is touched upon a few times.
This argument eventually progresses to a historical debate, with a great deal of back-and-forth comparisons to ancient Greece, philosophers, the Netherlands, and the idea of “coverture” in marriages of the past (i.e., when a women’s property and rights were taken up by the husband in an unequal partnership).
2. Returning to the 14th Ammendment
Eventually, the point came to America specifically. Its responsibilities to its citizens was once more brought into the conversation by Mary Bonauto, acting as a representative for same-sex clients.
“There were marriages prior to the United States forming, and we recognize that,” she said. “But when our nation did form into this union, in 1787, and then when it affirmed the 14th Amendment in 1868, that’s when we made — our nation collectively made — a commitment to individual liberty and equality.”
3. The wait-and-see argument
The discussion also came to address the argument that states should be given the opportunity to choose to wait and see whether same-sex marriage has a detrimental effect on the institution of marriage in other states — test-case states, as it were. The counterargument was given that, much like interracial marriages and coverture, this preference by many must be negated for the protection of the rights of the few in a timely manner.
4. The polygamy argument
The question of marriage between four individuals came up as a “slippery slope” argument. What next? Why would polygamy not become an issue of discrimination? Bonauto argued that child rearing would become an issue, as would “consent and coercion,” and that the states would not allow this issue to come into play.
5. The child-rearing argument
The issue of adoption, social science, and gender roles are quickly addressed at the beginning of the Supreme Court’s arguments, in part used as justification for the wait-and-see concept. Later, the discussion of how reproduction within a marriage might be threatened — or not threatened — was brought up. In particular, the argument was that “if same-sex couples marry, then different-sex couples won’t, and have their children in a marriage.”
Bonauto argued: “Those two could not be further apart. People make their own decisions. It is beyond attenuated.” She also disconnects the idea of marriage and children to an extent, citing the fact that same-sex marriage is no threat now, even in those areas that allow for it, and that people “can choose to marry at 70 or 90 because of their commitment to one other.”
6. Religious freedom
Religious freedom was also a subject of discussion: Would ministers be forced to marry couples if it violated their religious beliefs? Is this a right better safeguarded with state legislation than Constitutional definition?
Scalia argued that this was the case, while Bonauto argued that the First Amendment properly protected the religious rights of religious officiators and would not allow them to be forced into something they did not believe in.