The future legal and social status of marriage in the United States of America was the subject of high-level juridical debate in the nation's leading courtroom on April 28th. Oral arguments were heard before the U.S.
Supreme Court in a momentous case that will long be known as Obergefell v. Hodges.
The nine justices on the High Court heard an appeal of a decision by the 6th U.S. Circuit Court of Appeals upholding the traditional marriage laws of the states of Michigan, Ohio, Kentucky, and Tennessee. Groups of homosexual "couples" are seeking to overturn that ruling, requesting that the Supreme Court issue a blockbuster decision redefining marriage nationwide to include same-sex unions.
The High Court has essentially three legal paths before it. It could choose to:
1) Uphold and reaffirm the historic right of the states to define marriage as the union of a man and a woman, and to refuse to recognize any other union as a marriage.
2) Uphold the right of the states to issue marriage licenses only for unions of a man and a woman, but require states to recognize same-sex unions from other states.
3) Repudiate the longstanding right of states to define the institution of marriage, and establish the desire of any two persons to be legally "married" as a fundamental right which must be recognized and "licensed" in every state of the Union.
As expected, all eyes were on Justice Anthony Kennedy during the questioning of lawyers representing each side in this dramatic case. Kennedy has become the deciding vote on a court almost evenly split between liberal activist judges and more conservative judges who tend to interpret the Constitution according to the intentions of its authors.
Justice Kennedy has been the driving force behind three previous decisions favorable to the homosexual rights cause. He was a leading voice in opinions striking down a Texas law banning sodomy, a Colorado law prohibiting special rights for homosexuals, and a federal law limiting retirement benefits to traditional marriage partners.
During oral arguments by the plaintiffs, Kennedy noted that marriage has been only known as the union of one man and one woman throughout the history of the
human race. "The definition has been with us for millennia. When we talk about millennia...I don't even know how to count the decimals. It's very difficult for the Court to say, 'Oh, well, we know better.'"
Yet later during oral arguments by the defendants, Kennedy followed the line of non-legal reasoning he has enunciated before, asking why same-sex couples should not be able to embrace the "nobility" and "sacredness" of marriage. Kennedy postulated that marriage bestows "dignity" on a relationship.
Chief Justice John Roberts made a central observation we have made often. Roberts told the lead attorney for the homosexual couples: "You're not seeking to join the institution [of marriage], you're seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship." Justice Samuel Alito
posed the obvious question of what legal ramifications occur if marriage is redefined as a government recognition of expressions of emotional
commitment. Does that mean that there can be multiple partners in a marriage who share an emotional bond, or can marriage include two siblings who have shared the most intimate moments of their life together?
Justice Antonin Scalia reduced the debate to a basic question of constitutional jurisprudence. "The issue, of course, is not whether there should be same-sex 'marriage,' but who should decide the point, he said."
Chief Justice Roberts also speculated on the political fallout from a Supreme Court mandate. "If you prevail, there will be no more debate...It will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts."