In-depth analysis of Tuesday’s oral arguments at the Supreme Court

By William C. Duncan

What did we learn from Tuesday’s U.S. Supreme Court oral arguments in the same-sex marriage cases?

A caveat is necessary before answering that question. The answer most people are looking for when they listen to or read the arguments is: What will the court do? When the justices release their decision will they either (1) allow the states to retain the virtually universal understanding of marriage as a union of husband and wife which protects children’s entitlement to a married mother and father or (2) order every state to redefine marriage so as to include same-sex couples?

The arguments, however, are of limited utility in asking that question. Perhaps the justices will tip their hands on their preferred resolution of the case in the questions they ask, but they may not. They might be testing the attorneys to see if they will make concessions, trying out novel arguments of their own, setting up an easy question to give an attorney a chance to demolish it, having fun badgering someone whose job requires them to accept it with a smile, etc.

That’s not to say that there’s not much we can learn from the arguments.

The argument was divided into two parts. In the first, the court addressed the question of whether the states are required by the U.S. Constitution to redefine marriage. Arguments were presented by an attorney for same-sex couples, an attorney for the state of Michigan (one of the four states being sued), and by the Solicitor General of the United States, who asked for time (despite the federal government not being affected by the case) to argue for same-sex marriage.

The second portion addressed the question of whether, if the court says “no” to the first question and allows states to retain husband-wife marriage in their laws, the Constitution requires those states to recognize same-sex marriages contracted in other states. Here, the arguments were presented by an attorney for the plaintiffs and an attorney for Tennessee.

The questioning in the two portions covered a lot of ground, of course, but for now, it’s interesting to note two themes.

First, the meaning of marriage.

At two points, the attorneys arguing for same-sex marriage fell into an intellectual trap. They were asked why the rule they proposed for understanding marriage would not also require the states to recognize other kinds of marriage arrangements, like group marriages (say, among lawyers, as Justice Alito joked).

Surprisingly, both times the attorneys were asked about this they said that multiple-party marriages need not be recognized because that’s not what we mean by marriage! Which, of course, is the reason why the states should not be required to recognize same-sex marriages. Marriage has a meaning, tied up in sexual difference and the related matter of procreation. Nothing in the Constitution requires that meaning to be abandoned.

The plaintiffs in these cases disagree, because they have already adopted a novel definition of marriage that allows sexual differences to be suppressed. What is that meaning?

The most direct exchange on this issue came when Justice Alito asked the Solicitor General, “What do you think are the essential elements of marriage as it exists today?” Here is the answer: “Well, I think the essential elements of marriage are . . . the obligations of mutual support and responsibility and the benefits surrounding marriage that state law provides to ensure that there is an enduring bond, that enduring bond that continues over time and lasts, hopefully, till death do us part, through the end of life.”

At another point, the plaintiffs’ attorney and some of the justices seemed to be trying to discredit the significance of the universal understanding of marriage as requiring a man and a woman by noting changes in property ownership related to marriage in the past. Chief Justice Roberts pointed out, though, “[I]f you look at the basic definition, it is between a man and a woman. It does not always say between a man and a woman in which the woman is subordinate in legal respects.” The attorney’s response is instructive: “[T]he thing about marriage is that it’s controlled and regulated by the States.  The States create the definition of civil marriage.” Justice Kennedy offered an important response to this point, noting that marriage is actually not just a government creation.

Finally, near the end of the questioning of Michigan’s attorney, one of the justices challenged the attorney’s statement that marriage is not a way of bestowing government approval on adult relationships: “I don’t understand this not dignity bestowing. I thought that was the whole purpose of marriage.”

These exchanged give us the clue to understanding the new understanding of marriage. It is a government program to bestow dignity on adult choices.

Second, consequences for religious liberty.

As others have noted, the solicitor general was asked about an earlier Supreme Court case by Justice Alito: “Well, in the Bob Jones case, the court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating.  So would the same apply to a university or a college if it opposed same sex marriage?” The solicitor general’s response was candid: “You know, I — I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that.  I don’t deny that, Justice Alito.  It is  it is going to be an issue.”

In both instances, what we learned from the oral argument completely undermines the idea that redefining marriage does not impact any broader social interest. It is clear that this redefinition will have effects on the core social interests in (1) maintaining an institution that promotes the ideal of married mothers and fathers for children, and (2) preserving religious liberty against the homogenizing effects of a sexual revolution.

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