It's remarkable how the States could make their arguments against letting gays marry and almost ignore the antigay discrimination element. It may be good strategy: you don't want to admit that you're oppressing people. But it is still a remarkable thing to ignore the people your policies hurt and reorient your argument into something about institutional competence or separation of powers. The question the States see is at issue is this: Who decides?
"Is it the people … or is it the federal courts?"
The States' attorney John J. Bursch (Special Assistant Attorney General, Michigan) went further: This case, he said, is about "the fundamental liberty interest" of the citizens of the States to "decide what marriage means."
It took Justices Sotomayor and Breyer less than 2 seconds each to chime and say no. And it just got worse from here for a lawyer who didn't have many answers.
Justices Sotomayor, Kagan, Breyer, and Ginsburg focused many of their questions on the States' argument that banning gays from marrying will actually enhance opposite-sex marriage. Obviously, the States' attorney could not answer that because banning gays from marrying has no effect on opposite-sex marriages. He fumbled the ball, relying on a softball question from Justice Scalia that we will discuss in a future post. This argument is a loser for the States.
The most symbolic moment came when the States' attorney posed a hypothetical. Imagine there are two couples, both have been together for several years, both are married, both have a three-year-old child: one child grows up believing that marriage is about keeping the family unit, including the child, together (if you are pictorially-inclined, imagine a triangle); the other child grows up believing that marriage is about expressing the emotional commitment between the individuals married (imagine a line) and as that commitment fades, the marriage breaks up. The States' attorney was arguing that two-person commitment is not enough because as an ideal of marriage, mere two-person commitment weakens marriage. It makes it about just the married people, not the life that they are encouraged to bring into the world. A child who grows up in a world where marriage is a line is more likely to get divorced and more likely to not procreate. A reasonable voter could believe that the triangle is better than the line.
In a way, this is a clever strategic argument because it turns the marriage equality push on love and commitment into a burden.
But it is insidious, discriminatory, and downright evil. I will highlight two ways. First, it reminds us of the stereotypes of gay persons as purely hedonistic and out for themselves. Second, it derogates the commitment of those persons who simply do not want to have children. And third, as Justice Kennedy noticed very quickly, the relevance of that argument to the current case assumes that gay marriages could not have a "more noble purpose." To suggest that gay couples cannot embrace the noble purposes of marriages is deeply offensive.
The States' argument shattered when Justice Kagan posed the question of allowing couples who do not want — or cannot have — children. The States' definition of marriage was "procreation centered," as Justice Kagan said. If that were correct, then it should also be constitutional to ban couples who cannot or will not have children from marrying.
A few take aways from Question 1:
Justice Kennedy seemed entirely unconvinced by everything the States' attorney said. He was critical of the States' arguments and asked pointed questions that expressed his skepticism.
The States' argument comes down to two related points: A reasonable voter could believe that marriage should be bound up with the state's interest in encouraging procreation inside marriage. If that's true, then it is entirely reasonable for state voters to choose opposite-sex marriage over same-sex marriage. This returns us to the question of "who decides?" Should a court step in or should the will of the people be left?
The problem with that argument is that it doesn't make any sense. Yes, a reasonable voter could believe that marriage is about creating children. However, there is no connection between that reasonable view and banning gays from marrying. Justice Kagan understood this, as did Justice Breyer and Justice Ginsburg. Justice Kennedy understood it, too.
There is, obviously, much more to discuss. Argument summaries on Question 2 are coming up.
Follow me on Twitter.
Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.