Bearing in mind that it would be foolish to try to game the outcome of the case from the questions asked by Supreme Court justices, a couple of the questions asked during yesterday’s oral arguments are particularly worth pondering.
I’m not sure it’s necessary to get into sexual orientation to resolve the case.
I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t.
And the difference is based upon their different sex.
Why isn’t that a straightforward question of sexual discrimination?
This is a loaded question from the Chief Justice, because it suggests the possibility of deciding the case under a judicial standard of intermediate scrutiny rather than the usual rational basis review, which surely would increase the probability of striking down state laws restricting marriage to opposite-sex couples. It is of some note here that fellow SINner Vandy Beth Glenn played a key role in pioneering the extension of intermediate scrutiny to discrimination based on transgender status in Glenn v. Brumby, and this proved an effective strategy in her case.
Remember when the Chief Justice surprised almost everyone by breaking from the court’s conservative voting bloc on the Affordable Care Act? I’m not laying odds, but let’s not rule that out in this case.
We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down.
And no State was allowed to have such a — such a marriage anymore.
Would that be a choice that a State should be allowed to have?
This question strikes at the heart of the respondents’ case in favor of leaving these matters to the states, though it will take a bit of unpacking to show why.
There was a time in this nation (prior to oral contraception, legalized abortion, and second-wave feminism) when most any heterosexual coupling carried a strong potential for unplanned offspring. The argument put forward by the State of Michigan is essentially that the rights and responsibilities of marriage as a civil institution are largely concerned with funneling that latent reproductive potential into a stable union for the sake of productive childrearing, because the state always has an interest in producing the next generation of healthy and well-adjusted taxpayers adults. While I have no doubt that this rationale was at least partially valid at some point in the remote past, the circumstances on the ground have radically changed in the last half-century or so. With the exception of a few religious regressives (Quiverfull activists, hardcore Catholics, old Amish, etc.) who must graciously accept God’s blessings as they come, heterosexual couples are now free to decide between themselves when they choose to bring a child into the world.
It is no coincidence that the most explicitly pro-natalist religious fundamentalists also tend to emphasize the sort of wifely submission to husbands which was once reflected in the archaic Head and Master laws. If women are to be “saved through childbearing” then surely they must “learn in quietness and full submission” from their husbands and other male authority figures (1 Tim 2). This coupling of submission and childrearing is not unique to the Abrahamic faiths, naturally, but they are particularly relevant here in the United States. As Justice Scalia said yesterday, “I’m concerned about the wisdom of this Court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons.”
This brings us to Ginsburg’s incisive point: The legal and social institution of marriage has dramatically evolved over time, well beyond the traditional religious conception thereof. It is no longer an institution in which men are formally recognized as the economic and legal head of the union while women are valued primarily for childbearing and childrearing, but rather a partnership of equals who strive to forge a life together. Having been reconceptualized from a divinely-ordained gendered division of familial labor to a secular companionate partnership, the institution finally stands ready to accept same-sex partners as such.
It may well be said that I’m being unfair to the respondents, who were quite careful to couch their arguments in secular rather than religious terms. Perhaps this is so, but I stand by my contention that the states’ bans on same-sex marriage in Ohio, Michigan, Kentucky, and Tennessee were ultimately rooted in faith-based ethics rather than any sort of rational basis. I remain cautiously optimistic that the highest court in the land will recognize this and rule accordingly.
