The justices of the Supreme Court asked those most poignant questions over and over during this week’s arguments about same-sex marriage. They sounded humbled: Who are we to tamper with this ancient thing called marriage?
For all known history, marriage has been between a man and woman, said Justice Anthony Kennedy, who is likely to be the swing vote. “This definition has been with us for millennia,” he said. “And it -- it's very difficult for the Court to say, oh, well, we -- we know better.”
Even liberal Justice Stephen Breyer, all but certain to vote to give same-sex marriage constitutional sanction, said the court was puny against the span of history. Traditional marriage was “the law everywhere for thousands of years among people… and suddenly you want nine people outside the ballot box to require States that don't want to do it to change … what marriage is to include gay people.”
“Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage?” he asked.
The arguments from the lawyers, it almost seems, took a backseat to the ghosts of history and tradition, and the fear of mucking with them.
“Well, how do you account for the fact that, as far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?” Justice Samuel Alito asked. “Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”
“Your Honor, my position is that times can blind,” the lawyer defending same-sex marriage responded.
The power of historical habit has no specific legal weight in American law, but it weighed heavily on the justices, especially the conservative ones who disapprove of tinkering with tradition as a rule. An ancient custom, which we presume to be grounded in ancient wisdom, is now colliding with new mores that now seem fair and just.
“But I don't know of any -- do you know of any society, prior to the Netherlands in 2001, that permitted same-sex marriage?” Justice Antonin Scalia asked. “And you're -- you're asking us to -- to decide it for this society when no other society until 2001 had it.”
I suspect this unease is quietly shared by many Americans who nonetheless have come to believe that banning same-sex marriage is unfair and unjust discrimination.
“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,” Chief Justice John Roberts said to the plaintiffs’ counsel. “Obviously, if you succeed, that core definition will no longer be operable.”
Justice Breyer eventually answered his own question. There is just “one group of people” who have been barred from the “ fundamental liberty” of marriage. “And so we ask, why?” he said. “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.”
It’s tough to rebut that.
Justice Kennedy answered some of his own worries, too. The Supreme Court has faced questions about gay rights for decades and about gay marriage for around 10 years. Yes, that is a blink in the great expanse of history, but it’s a substantial period in the life of a young country. There has been time, Kennedy said, “for the scholars and the commentators and -- and the bar and the public to -- to engage in it.”
But still, Chief Justice Roberts said, shouldn’t voters not judges decide this question about such a fundamental social practice. “People feel very differently about something if they have a chance to vote on it than if it's imposed on them by -- by the courts,” Roberts said.
Justice Elena Kagan had the answer to that. “We don't live in a pure democracy; we live in a constitutional democracy.”
This may seem harsh, but if the Supreme allows states to ban same-sex marriage, it will feel too many like a hate crime wrapped in judicial robes.
“The most important of all revolutions [is] a revolution in sentiments, manners and moral opinions,” said Edmund Burke, the oracle of modern conservatism. That revolution has happened. The law needs to catch up, even according to conservative principles.