U.S. Supreme Court Considers Not Outlawing Traditional Marriage after All

From what I hear (Professor John Eastman’s excellent summary of today’s oral arguments), the good guys did surprisingly well at the Supreme Court today, and right out of the gate, swing-vote Kennedy came out swinging (audio here):

JUSTICE GINSBURG: What do you do with the Windsor case where the court stressed the Federal government’s historic deference to States when it comes to matters of domestic relations?

MS. BONAUTO: States do have primacy over domestic relations except that their laws must respect the constitutional rights of persons, and Windsor couldn’t have been clearer about that. And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.

CHIEF JUSTICE ROBERTS: Well, you say join in the institution. The argument on the other side is that they’re seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.

MS. BONAUTO: I hope not, Your Honor, because of 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. And if Your Honor’s question is about does this really draw a sexual orientation line —

CHIEF JUSTICE ROBERTS: No. My question is you’re not seeking to join the institution, you’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.

MS. BONAUTO: Two points on that, Your Honor. To the extent that if you’re talking about the fundamental right to marry as a core male-female institution, I think when we look at the Fourteenth Amendment, we know that it provides enduring guarantees in that what we once viewed as the role of women, or even the role of gay people, is something that has changed in our society. So in a sense, just as the Lawrence court called out the Bowers court for not appreciating the extent of the liberty at stake, in the same vein here, the question is whether gay people share that same liberty to be —

JUSTICE KENNEDY: The problem —

MS. BONAUTO: — able to form family relationships.

JUSTICE KENNEDY: One — one of the problems is when you think about these cases you think about words or cases, and — and the word that keeps coming back to me in this case is — is millennia, plus time. First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it’s been — it was about — about the same time between Brown and Loving as between Lawrence and this case. It’s about 10 years.

And so there’s time for the scholars and the commentators and — and the bar and the public to — to engage in it. But still, 10 years is — I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it — it’s very difficult for the Court to say, Oh, well, we — we know better.

(Emphasis added.)

But Hot Air sounds much more pessimistic about Kennedy’s, er, orientation.

National Review weighs in:

• The editors: “The Constitution Is Silent on Same-Sex Marriage”

An older view of marriage has steadily been losing ground to a newer one, and that process began long before the debate over same-sex couples. . . . On the newer understanding, marriage is primarily an emotional union of adults with an incidental connection to procreation and children.

. . . But perhaps the more telling point is that the newer view does not offer any strong rationale for having a social institution of marriage in the first place, let alone a government-backed one.

• David French: “Like the President and Hillary, My Views on Marriage Have Evolved”

I could not have been more wrong. Indeed, this sentence — “For those who believe gay marriage is morally wrong for Biblical or other religious reasons, this decision changes nothing” — may have been among the most inaccurate predictions in the history of punditry. As recent history decisively demonstrates, if you believe gay marriage is morally wrong, virtually everything is changing.

. . . Christians must lose their jobs, lose their businesses, and close their schools, unless they bend the knee to the sexual revolution.

• Joel Gehrke: “Obama’s Lawyer: Religious Institutions May Lose Tax-Exempt Status If Court Rules for Gay Marriage”

“It’s certainly going to be an issue,” Solicitor General Donald Verrilli replied when Justice Samuel Alito asked if schools that support the traditional definition of marriage would have to be treated like schools that once opposed interracial marriage. “I don’t deny that.”

Maybe the Supreme Court will restore some sanity to our legal order, and state the obvious: that the states remain free to keep the definition of marriage unchanged, if they so choose.  Maybe we’ll look back on this as a high-water mark for the left (with respect to the particular issue), like the near-ratification of the Equal Rights Amendment—a time when the left came so close, and might have succeeded if this or that had gone slightly otherwise, but will never come so close again.

At this point, the contrary may be the more likely outcome: the constitutionalization of same-sex “marriage” by judicial fiat.

Either way, I expect we’ll continue fighting in the trenches for decades to come.

Update (April 29th, 2015): David French offers more reason to be pessimistic:

The institution of marriage was never meant to be about bestowing dignity on couples, he said. This drew a sharp response from Justice Kennedy. “I thought the whole purpose” was to bestow dignity, he said.

That statement, in a nutshell, is why I remain pessimistic about the outcome. When a justice feels empowered to decide — virtually on his own — that the “whole purpose” of what even he acknowledges is an ancient institution is to “bestow dignity” on adult relationships, it’s tough to see any form of rigorous constitutional analysis.

On the other hand:

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?

GENERAL VERRILLI: 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.

Clearly, the Obama Administration is swinging for the fences here, and it may have gone too far. Justice Kennedy may take pride in his support for gay rights, but he’s also somewhat libertarian in outlook and generally not a supporter of the use of state power to crush dissent. It was clear that a number of justices are concerned about the religious liberty implications of marriage redefinition . . . .