I just got done listening to the oral arguments in Obergefell v. Hodges, the Supreme Court case that is expected to decide the issue of whether same-sex couples have a constitutional right to marry (transcript here, audio here; note that it will autoplay). A couple of quick takeaways:
Justice Scalia, in questioning petitioners' counsel Mary Bonauto, played his usual role of the dumb, ordinary guy who just can't see this or understand that or figure out how you can possibly get from this to that, to the point where one had to wonder whether he's (a.) not a real jurist, or (b.) just a really great actor playing the role of the dumb, ordinary guy who never went to law school. I realize that appellate judges often do that, play dumb in order to get the attorneys to fill in the blanks for them, but this was ridiculous. Scalia and Alito both were deliberately obtuse about the history and, ahem, "definition" of marriage, and I thought Ms. Bonauto did a fair -- albeit not particularly good -- job pointing out what a crock their questions represented.
Solicitor General Verilli did a much better job, focusing on exclusion rather than irrelevant philosophical tripe about ancient traditions and definitions of words that supposedly go back "millennia" (more on that presently). Verilli even framed the inequality correctly:
[T]he law allows ... heterosexual people to enter into a marriage that's consistent with their sexual orientation, and in these states, it forbids ... gay and lesbian people from entering into a marriage that's consistent with their sexual orientation[.]
(Tr. at 33:23 - 34:3.)
...which I was pleasantly surprised and impressed by. However, neither of the advocates for the petitioners directly or explicitly framed the issue correctly, as one of equality vs. exclusivity.
Of course, the states' argument was far more entertaining. Counsel John J. Bursch, representing the respondent States, basically lost me in the first 30 seconds:
This case isn't about how to define marriage. It's about who gets to decide that question. Is it the people acting through the democratic process, or is it the Federal courts? And we're asking you to affirm every individual's fundamental liberty interest in deciding the meaning of marriage.
(Tr. at 41:10-15 (emphasis added)).
Oh, boy.
I don't envy counsel's position, having to defend the indefensible and justify the unjustifiable, and I have to give him credit as I haven't heard this one before. Never mind whether there's a "fundamental liberty interest" in being married, or in choosing whether, when, where, how, why -- and who -- to marry. No; the "fundamental liberty interest" at stake here is "in deciding the meaning of marriage."
I would agree that everyone has a right to decide "the meaning of [their own] marriage," viz., the meaning of marriage for oneself and one's partner within one's own life. But "every individual" now has "a fundamental liberty interest in deciding the meaning of marriage" for everyone else??? This is just a variation on the execrable and dangerous theme that a majority can and should be allowed to vote on and "decide" whether a minority shall or shall not have certain rights; it's where the Sixth Circuit went horribly, risibly wrong. Put simply, there is no "fundamental liberty interest in deciding the meaning of marriage" for anyone other than oneself. None whatsoever. No such thing exists.
Counsel trotted out another variation of this, and a problematic one at that, a couple of times later on, saying that in Windsor, the Court "said that the limitation of marriage to opposite-sex couples has always been thought to be fundamental." (Tr. at 60:6-8 (emphasis added); see id. at 61:15-23, 83:13-16.) Both Justices Breyer and Scalia expressed skepticism that the Windsor decision actually said that (see Tr. at 83:23 - 84:12), and rightly so. The Windsor decision, written by Justice Kennedy and joined by Justices Breyer, Ginsburg, Kagan and Sotomayor, does state the following in dicta:
It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.
(
U.S. v. Windsor, 133 S. Ct. 2675, 2689 (2013) (emphasis added)). Note the Court's use of the past perfect tense, "
had been", versus counsel's use of the present perfect, "
has always been". The change in verb tense is subtle but extremely significant, and of course, deliberately misleading. Moreover, the
Windsor decision goes on to state that:
For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
(
Id. (emphasis added).)
So, Mr. Bursch not only dissembled about what was in the Windsor decision, he again tried to shift the "fundamental" rights and liberties at issue out of the hands of the petitioners and the LGBT community and into those of absolutely everyone else but them. There is a "fundamental right to decide the meaning of marriage," held by the states and their respective electorates, and that "meaning" itself has a "fundamental" right to be whatever it's been "for millennia," and/or whatever the states and voters say it is. In Mr. Bursch's world, words and their "meanings" have more rights than gay people.
And speaking of the meaning of words, Mr. Bursch actually said this:
[W]hen you change something as fundamental as the marriage definition ... the dictionary definition which has existed for millennia, and you apply that over generations, that those changes matter.
Excuse me; the "
dictionary definition which has existed for millennia"?? Dude, the effing
dictionary hasn't "existed for millennia". The English language as we know it is only about 500 years old. The first English dictionary was written around 1604, and the first authoritative one didn't come out until the mid-18th century. I know he only meant that rhetorically, but still; even Justice Kennedy latched onto this "definition that's been this way for millennia, everywhere, always" nonsense. And
no one pointed out that that's bunk.
Which brings me to my main problem with the states' argument as set forth by Mr. Bursch today, and that's that the purported justification for maintaining exclusivity in marriage for opposite-sex couples only is really nothing more than an exercise in thought control, which I've written about before. What he basically means by "those changes matter" in the above quotation is that "changing" the "definition" or "meaning" of marriage as a civil institution -- i.e., ending exclusivity -- might affect how people think and feel about marriage, children, family, relationships, parenting, and so forth, which in turn might have some vague, attenuated, unknown, undefined "consequences." He kept coming back to this theme over and over again:
[I]t has to do with the societal understanding of what marriage means. This is a much bigger idea than any particular couple and what a marriage might mean to them or to their children. And when you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences.
(Tr. at 44:25 - 45:6 (emphasis added).)
[T]he reason why there's harm if you change the definition because, in people's minds, if marriage and creating children don't have anything to do with each other, then what do you expect?
(Tr. at 47:16-19 (emphasis added).)
I want you to think about two couples that are identically situated. They've been married for five years, and they each have a 3-year-old child. One grows up believing that marriage is about keeping that couple bound to that child forever. The other couple believes that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together.
A reasonable voter ... could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems.
(Tr. at 48:13-24 (emphasis added).)
[I]f you change the societal meaning of what marriage is, and society has already started to move away from what we always understood marriage to be, [which is] that linkage between kids and their biological mom and dad. The more that link is separated, the more likely it is that when you've got an opposite-sex couple, that link will not be maintained, because it's more adult-centric, and it's less child-centric. You've got more kids being raised without their biological mom and dad. ... And it's not unreasonable for the people in thinking about the possible consequences of changing a definition ... [which] might have real consequences. To say otherwise is to say that it's irrational for a person to think that changing an idea about something will have no effect on how people think about that idea.
(Tr. at 69:25 - 70:19 (emphasis added).)
This is little different from the comments I quoted in my previous piece about thought control; it's all about "societal understanding" and "link[ing]" or "delink[ing] idea[s]" and what this or that "means to" whomever and what goes on "in people's minds" and "different outcome[s]" of being "influenced by" "different belief systems" regarding what "marriage is about" and the "possible consequences" of "how people think about that idea." We've all heard and read this before. It's all a tangled mess of vague speculation and circular reasoning and poorly-thought-out hogwash that, in the end, amounts to nothing more than a desire to control and limit what people think and how they feel, which as counsel rightly implies, varies greatly from one individual to the next.
What people think and how they feel about marriage, family, children, relationships, &c. is the sort of thing that the state should stay out of and leave to the individual. Mr. Bursch and his clients clearly believe that the state should control such thoughts -- by reserving the institution of marriage exclusively for those couples whose existence, and whose exclusive enjoyment of access to this civic institution, would have the desired thought-controlling effect. If the sole justification for the exclusion is that without it people might have different thoughts, whereas maintaining it might prevent, curtail or limit such thoughts, then there is no justification for the exclusion.
Thankfully, Justices Kagan, Sotomayor and Breyer didn't let this slide, and kept bringing Mr. Bursch back to his main task of justifying the exclusion of same-sex couples from the civic institution of marriage, which he was, of course, unable to do.