This week we are closer to achieving a long-anticipated milestone as the Supreme Court justices heard a consolidated same-sex marriage case involving plaintiffs from four states �" Kentucky, Michigan, Ohio, and Tennessee �" that we hope will affirm the constitutional right for people of the same sex to marry in all 50 states.
The piecemeal, state-by-state approach so far has expanded marriage equality to 37 states, plus Washington, D.C., but it has also exposed the urgent inequalities between states of how couples are treated. The Supreme Court should take the next step to bring consistency to the rights of married couples and their families.
Tuesday's arguments were lively, as the justices (except Clarence Thomas, who hasn't asked a question in nearly a decade and last spoke in court in 2013) peppered the attorneys with questions. But as the exchanges showed, it's time to resolve the issue and put to rest some false arguments. Conservative justices were reduced to raising the tired tropes that anti-gay lawyers use every time they argue one of these cases. Justice Antonin Scalia, who's otherwise brilliant, showed his ignorance �" as he does when LGBT issues are before the court �" by his obsession with two same-sex brothers or sisters who might want to marry (not likely to be allowed, plaintiffs' attorney Mary Bonauto said). Justice Samuel Alito talked about how ancient civilizations accepted same-sex relations, such as Greece, yet still didn't allow two men to marry. Chief Justice John Roberts was hung up on the dictionary definition, which, until about a dozen years ago, defined marriage as between two people of the opposite sex. Didn't that prove that gays are trying to "redefine" marriage, he asked Bonauto.
"I hope not, your honor, because what we're really talking about here is a class of people who are, by state laws, excluded from being able to participate in this institution," Bonauto replied.
If that's all the anti-same-sex marriage side has, a ruling for equality should be inevitable.
There is a lot at stake for the plaintiff couples, many of whom are raising children. After Roberts mentioned the increased acceptance of gay and lesbian couples, Bonauto pointed out that not all states are equal.
"And in terms of acceptance, when I think about acceptance, I think about the nation as a whole, and the �" and there are places where, again, there are no protections, virtually no protections for gay and lesbian people in employment, in parenting," she said. "You know, the Michigan petitioners, for example, are not allowed to be parents of their own children, the children that the state of Michigan has placed with them and approved of their adoptions."
This example clearly shows that the reasons for denying marriage equality are illogical: the state places the children in the home of a lesbian couple, yet the state's outdated marriage laws won't legally recognize the family.
Justice Stephen Breyer got to the heart of the issue when he noted that just because something is relatively new doesn't preclude it from being recognized: "But there is one group of people whom they won't open marriage to. So they have no possibility to participate in that fundamental liberty," Breyer said. "That is people of the same sex who wish to marry. And so we ask, why? And the answer we get is, well, people have always done it. You know, you could have answered that one the same way we talk about racial segregation."
John Bursch, the attorney arguing against same-sex marriage, tried to make the point that his side wasn't defining marriage, yet he pressed for recognition of opposite-sex marriage only. But Justice Sonia Sotomayor didn't agree, saying that same-sex marriage wasn't taking anything away from heterosexual marriage. Bursch also argued that marriage is for procreation, a line of reasoning that has been rejected by courts across the country, and drew skepticism from Justice Elena Kagan, who asked him if it would be constitutional for states to deny marriage licenses to couples who did not want children. After trying to dodge the question, Bursch was forced to admit that it would be "an unconstitutional invasion of privacy."
We know that several of the justices are not going to decide in favor of a constitutional right to marry, and once again, Justice Anthony Kennedy likely will be the swing vote. Kennedy has authored three of the court's other landmark gay rights decisions, and while he did ask tough questions of the plaintiffs' attorney, we think that ultimately he will come down on the right side of history. Kennedy's previous decisions have shown his concern for children raised by same-sex couples and the fact that without marriage equality, those families are relegated to second-class status, which is unacceptable.
Tuesday's arguments had a "Groundhog Day" feel to them �" we've been through this before. Now is the time for the justices to make a bold decision by finding that marriage is a constitutional right for all couples �" gay or straight. To those states whose residents still don't accept marriage equality, we say, "It's time." The sky won't fall, and same-sex marriage in no way diminishes or undercuts heterosexual marriage. It's all about loving relationships.