By Ben Shapiro
The justices of the left, along with Justice Anthony Kennedy, who wrote the egregious opinion in Lawrence v. Texas (2003) in which he stated that those committing homosexual acts are Constitutionally “entitled to respect for their private lives” will determine that yes, the Constitution mandates not merely that the state respect private lives, but that the state endorse those private lives (so long as, presumably, polygamy and incest are off the table – for now).
Supreme Court oral arguments are useless, which is why Justice Clarence Thomas never bothers to ask questions; the justices have already made up their minds based on the submitted briefs. Nonetheless, court-watchers pay attention to oral arguments looking for indicators of how the justices will rule. If those oral arguments are any indicator, same-sex marriage will not merely be handed down from on high when this case is decided, religious institutions can prepare to have their tax-exempt status yanked (as I predicted, and as Media Matters scoffed at me for predicting, more than two years ago).
Justice Anthony Kennedy, who represents the likely swing vote in the same-sex marriage case, made his position crystal clear with his questions to Solicitor General Donald Verrilli. “Haven’t we learned a tremendous amount since – well, since Lawrence, just in the last 10 years?” he asked. That led Verrilli to praise Kennedy’s decision in Lawrence, stating, “I think what Lawrence did was provide an assurance that gay and lesbian couples could live openly in society as free people and start families and raise families and participate fully in their communities without fear.”
Later on, Kennedy explicitly rejected a linkage between marriage and child-bearing and child-rearing, stating to John Bursch, lawyer for traditional marriage, “You had some premise that only opposite-sex couples can have a bonding with the child. That’s – that was very interesting, but it’s just a wrong premise.” That, of course, was not Bursch’s premise – Bursch explained that his premise was that “we want to encourage children to be bonded to their biological mother and father.” But the fact that Kennedy ignored that argument in favor of a strawman demonstrates his perspective on same-sex marriage. Similarly, he ignored Bursch’s argument that marriage has a practical purpose, instead suggesting that traditional marriage advocates didn’t believe that marriage is “dignity bestowing.”
Chief Justice John Roberts asked the representative for gay couples, Mary Bonauto, whether she sought for homosexuals to join the institution of marriage or whether she was seeking to “redefine the institution.” Bonauto responded that the definition of marriage had to change because “what we once viewed as the role of women, or even the role of gay people, is something that has changed in our society.” But even Roberts, supposedly a proponent of traditional marriage, then suggested that enough time had passed for Americans to engage in a debate about same-sex marriage, although courts have mandated same-sex marriage in the vast majority of states in which it is legal.
Justice Samuel Alito then took over the questioning and asked whether Bonauto believed that all marriage statutes were designed to “demean gay people.” Bonauto essentially answered yes to the question. Alito followed up by asking whether for thousands of years, all cultures that endorsed traditional marriage were “operating independently based solely on irrational stereotypes or prejudice?” Bonauto answered again in the affirmative. Alito asked Bonauto why, then, ancient Greece approved homosexuality but still did not endorse same-sex marriage. She claimed ignorance. Alito then asked why same-sex marriage should be endorsed but not incest or polygamy; she answered that polygamy would lead to family disruption (a particularly weak argument, given the nature of multiple divorce in America today), and coercion (another weak argument, since coercion is already illegal). He asked the same question in another guise to Solicitor General Donald Verrilli, who similarly failed to answer it.
Justice Ruth Bader Ginsburg stepped in to irrationally demean the institution of marriage, calling it a historically “dominant and a subordinate relationship,” then stating that modern society had made marriage “egalitarian,” and that egalitarian marriage would encompass homosexual couples.
Justice Antonin Scalia asked Bonauto whether she could name “a single other society until the Netherlands in 2001” that “permitted same-sex marriage.” She admitted she could not, but added that all other societies were basically homophobic. He also asked Bonauto whether “a minister who is authorized by the State to conduct marriage can decline to marry two men.” Bonauto said that the First Amendment would protect such ministers, although she did not explain why the First Amendment would do so, given that the lawyer for the Obama administration, Verrilli, would later openly admit that religious institutions could see their non-profit status revoked, and religious businessowners in various states have already been fined for failing to serve same-sex weddings. And as Scalia pointed out, a Constitutional requirement to recognize same-sex marriage would only strengthen such acts against religious Americans.
Justices Breyer, Sotomayor, and Kagan all endorsed in glowing terms same-sex marriage; that’s no surprise, since all are rabidly left generally, and both Kagan and Ginsburg have officiated same-sex weddings. All argued that the institution of marriage is specifically designed only to grant dignity, and that it is discriminatory not to grant dignity to homosexual couples – showing once and for all that for the left, the government is God, and that the State is the final arbiter of all that is just and good, rather than a protector of rights pre-existing government.
In the end, the Supreme Court will rule that same-sex marriage is the law of the land; the pseudolegal nonsense spewed by the various justices having no relation to the Constitution is mere post facto justification for decisions already made.