Littwin: Arguments still seem to fall one way on Supreme Court gay marriage day

[dropcap]I[/dropcap]’m sure the experts are right that the Supreme Court same-sex marriage decision is a toss-up, and that it was hard to tell, after two-and-a-half hours of oral arguments, which way Justice Anthony Kennedy, the expected swing vote, would actually swing.

But this much seemed clear: For the court to rule against same-sex marriage, it would have to accept at least two semi-bizarre arguments. One, that as far as the state is concerned, love is beside the point in marriage, which contradicts at least a hundred years of musical standards and about a dozen Shakespeare comedies. Two, that if same-sex couples were allowed to marry, it might weaken the bonds between parents and their biological children. Because, well, because.

Of course, you might say that semi-bizarre arguments against same-sex marriage are a major step up, and I’d have to agree.

[pullquote]John Bursch, solicitor general of Michigan, had nothing to say against same-sex couples, nothing at all, except that their getting married was bad, you know, for the state, because of the children.[/pullquote]

Let’s go to the truly nutty first. In one amicus brief, said to represent the views of “100 scholars of marriage,” the argument is that same-sex marriage would devalue traditional marriage and thereby discourage women from having children, thereby leading to abortions by the hundreds of thousands. This is a real thing. As Dana Milbank wrote, the argument is that same-sex marriage kills.

And then there’s another amicus brief, this one via Rep. Marsha Blackburn (R-Tenn.), arguing that same-sex marriage undermines traditional marriage, therefore “encouraging the growth of government and removing a key bulwark against government, particularly tyrannical and totalitarian ones.”

OK, so we have death and tyranny, which sounds strangely like a Patrick Henry speech. And then there’s the oldie but goodie – Focus on the Family is strong on this one – that same-sex couples would destroy traditional marriage and probably civilization if they were allowed to marry. This is based on the idea that your traditional opposite-sex marriage will be harmed somehow by what your neighbor five houses down the block is doing. Two thoughts: One, I don’t know who my neighbor is five houses down. And, two, I remember writing years ago about asking my wife what would happen if gay marriage came to Colorado, and we decided, after much discussion, to stay married.

Which brings us back to the court. You can’t watch the court unless you go to Washington and stand in line for days to get a seat because, although they’re ruling on things like same-sex marriage, it appears that TV cameras are little too hip for them. But they’re apparently into radio, because the audio is great, so long as you can tell which justice is speaking. (Hint: The funny ones are Ginsburg and Scalia, and it’s usually easy to tell them apart.)

The stage was set for the arguments pretty quickly when Justice Kennedy said he kept coming back to the point that the original basis of marriage — men and women coming together — is many millennia old, and he wasn’t sure that nine justices should be the ones to change that. It’s a valid argument, up to a point.

As Justice Ginsburg pointed out, for most of those thousands of years, marriage was a matter of the husband dominating the wife and that changing the terms of marriage is basically a new thing — as a matter of equal rights for women, as a matter of civil rights. And in any case, this was a 14th Amendment argument — if there’s a fundamental right to marry, as Kennedy later noted there was, should someone have to wait for popular opinion to catch up? (Just look at any poll, and popular opinion has more than caught up. This is hardly a case of the court getting ahead of the people.)

But when John Bursch, solicitor general of Michigan, argued against same-sex marriage, he went in another direction. He had nothing to say against same-sex couples. Nothing to say against same-sex couples being allowed to adopt. Nothing to say against same-sex couples at all, except for them getting married. He said the point of marriage was not love — at least as far as the state’s interest was concerned — but in procreating. And while he conceded that many opposite-sex couples wouldn’t or couldn’t procreate, he said that wasn’t the point, which was same-sex couples couldn’t.

It’s hard to quote him fully, without going to the whole transcript, because he’d get interrupted about one-and-a-half sentences into each argument. But this is the basis of it — that “if you’re changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids.”

And then you know what comes next — “if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage.”

So, if we rely on love between two adults, that might well exclude the kids, because, well, because.

Was there any evidence to support this, Bursch was asked. Not exactly. It’s too soon. But you could understand, he said, why a rational actor — like the state of Michigan — would worry about it.

Yeah, I can understand it. If the state of Michigan doesn’t want same-sex people to marry, it has to come up with something.
Photo of the Guardian of the Law outside the U.S. Supreme Court by Mark Fischer.