Cover Story

Gettin’ on board the gay marriage train

"Gettin’ on board the gay marriage train" Continued...

Issue: "Unstoppable?," April 20, 2013

Still, even liberal justices Stephen Breyer and Ruth Bader Ginsburg never described same-sex marriage as a constitutional right in the arguments. Because the justices seemed uninterested in giving gay marriage the status of a civil right, the subject of potential threats to religious liberty—a key point in the debate for traditional marriage proponents—didn’t come up.

One central justification for traditional marriage laws—encouraging responsible procreation—did arise, but it didn’t gain traction with most of the justices, even though six are Catholics and three are Jews, faiths that emphasize the intertwining of marriage and procreation. Briefs from religious leaders like the National Association of Evangelicals and Catholic professor Robert George of Princeton University argued that the state should continue to preserve marriage as an institution between one man and one woman because only that relationship produces new human beings. 

The lawyers defending Prop 8 and DOMA avoided that topic. In California, for one, same-sex couples can already adopt children regardless of whether they are “married.” Charles Cooper, the lawyer defending Prop 8, dwelled briefly on the procreation argument, saying that redefining marriage would make its purpose not raising children but the “emotional needs of adults.” Culturally speaking, procreation is already distant from marriage’s purpose: In a 2010 Pew Research Center survey, 93 percent of respondents named “love” as an important reason to get married, while only 59 percent said having children was an important reason to marry.

Clement, in defending DOMA, didn’t mention procreation at all, but the other side did. Solicitor General Donald Verrilli Jr., arguing against DOMA, said the law had no connection at all to promoting procreation in marriage. The liberal justices also attacked that point. Only Roberts defended the idea: “When the institution of marriage developed historically, people didn’t get around and say, ‘Let’s have this institution, but let’s keep out homosexuals,’” Roberts said. “The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”

Even if the procreation argument floundered, traditional marriage defenders may get roughly what they wanted. The National Organization for Marriage, the Family Research Council, the Alliance Defending Freedom, and the Heritage Foundation prepared a booklet on the issue ahead of the cases. Its conclusion? “The Supreme Court should let the people choose.” 

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If the justices do what it looks like Kennedy may want them to do—ban the federal government from defining marriage and give that power to individual states—the political future is not necessarily inevitably and nationally victorious for gay marriage advocates. As of now, 41 states have defined marriage as between a man and a woman, and nine have legalized same-sex marriage. Despite polls shifting in favor of same-sex marriage, states remain that will probably maintain traditional marriage laws for the foreseeable future.

The morning of the DOMA arguments, several Supreme Court litigators sat in the court’s cafeteria drinking coffee and parsing the arguments. One had printed out the transcript from the previous day’s arguments, which he thumbed through as his colleagues brought up points. They made educated predictions, but landed ultimately where the most novice Supreme Court observer is: They have no idea what the court will do when it rules on the cases this summer.

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD from New York City. Follow Emily on Twitter @emzleb.

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