Nine justices walk into a bar
John VanBerkum | Monday, September 7, 2015
“The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations,” Kennedy begins. “Cicero wrote, ‘The first bond of society is marriage; next, children; and then the family.’”
“For all those millennia, across all those civilizations, ‘marriage’ referred to only one relationship: the union of a man and a woman,” Roberts clarifies. “Marriage did not come about as a result of a political movement, religious doctrine or any other moving force of world history — and certainly not as a result of a prehistoric decision to exclude gays and lesbians. Cicero actually wrote, ‘For since the reproductive instinct is by nature’s gift the common possession of living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home.’”
“One basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children,” Alito contributes. “Kennedy, your argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry,” he continues, “which enables you to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage. This understanding, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today but is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”
“But, the history of marriage is one of both continuity and change,” Kennedy responds. “That institution has evolved over time. As women gained legal, political and property rights, for example, the law of coverture was abandoned. This and other developments over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.”
Roberts counters, “They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, ‘Marriage is the union of a man and a woman, where the woman is subject to coverture.’”
Trying again, Kennedy says, “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions … ”
Scalia interrupts, “One would think you should continue: ‘ … and therefore they left the creation of additional liberties to the People, through the never-ending process of legislation.’ But no. What logically follows, in your judge-empowering estimation, is … ”
“ … and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning,” Kennedy said.
“The ‘we,’” Scalia clarifies, “is the nine of us.”
“When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed,” Kennedy emphasizes. “The Court has long held the right to marry is protected by the Constitution.”
Roberts makes a distinction. “These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. We held that racial restrictions on the right to marry lacked a compelling justification but did not purport to change the core definition of marriage as the union of a man and a woman. Removing racial barriers to marriage did not change what a marriage was any more than integrating schools changed what a school was.”
Frustrated, Scalia admonishes, “Kennedy, you are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. You are certain that the People ratified the Fourteenth Amendment to bestow on you the power to remove questions from the democratic process when that is called for by your ‘reasoned judgment.’ You know that limiting marriage to one man and one woman is contrary to reason; you know that an institution as old as government itself and accepted by every nation in history until 15 years ago cannot possibly be supported by anything other than ignorance or bigotry.”
Lacking further arguments, Kennedy and his four friends leave the bar.
John VanBerkum is a senior in the College of Arts & Letters. He can be contacted at email@example.com
The views expressed in this column are those of the author and not necessarily those of The Observer.