Only 35 years ago—a breath in the life of a culture—straight America saw gays and lesbians as forces of sexual anarchy who threatened a nation of happily married couples living in tidy houses with their beloved children.
In states where anti-gay initiatives were on the ballot, TV ads showed lesbians in leather and gays in spangles cavorting across the screen, accompanied by warnings that a “lifestyle” of deviant sex, pedophilia, and bestiality was about to drown us all.
Flash forward to April 28, 2015. John J. Bursch, the solicitor general of Michigan, explained to the Supreme Court that gay couples should not marry because they are too staid: They stand outside the anarchic swirl of straight sexuality that creates abandoned children and one-parent households.
Gays and lesbians—bless their naïve hearts—believe that marriage is about love, about commitment, about mutual support in sickness and health as long as we both shall live. But government, Bursch explained, knows that this is not true. Bursch was representing four states—Kentucky, Michigan, Ohio, and Tennessee—whose constitutions ban same-sex marriage. The challengers are residents of those states, all involved in—or survivors of—committed and stable same-sex relationships. Except for their gender, they are models of the kind of family life Americans once believed to be menaced by the emergence of gay America from the shadows. But they should not win, Bursch said, because they falsely believe that “that marriage is all about love and commitment. And as a society, we can agree that that's important, but the State doesn't have any interest in that.”
The state’s cold-blooded interest is in chaining up heterosexual couples to make sure they raise their biological children together. And same-sex marriage might harm that; or at least, no one can prove it won’t. “If people think ... marriage is more about love and commitment than about staying bound to your children forever, there might be different consequences” from allowing them to enter the legal state of marriage. And those consequences might very well be that “if marriage and creating children don't have anything to do with each other, then what do you expect? You expect more children outside of marriage.”
The argument was delivered well, but it is a terrible argument. It is an argument that does not deserve to win, and likely won’t. Bursch tied the states’ fortunes indissolubly to it, to the point that he may have insulted both Justice Anthony Kennedy (the vote he must have) and Chief Justice John Roberts (whose vote he probably has, but can’t afford to take chances with).
The opening of the argument offered Bursch a more appealing possible path to victory. When Mary Bonauto, the legendary gay-rights lawyer, rose at the beginning of the case to argue for the same-sex couples, she ran into heavy weather right away—anxious questions from Kennedy, whose vote, almost everyone agrees, will determine the outcome of the case. “One of the problems is ... when you think about these cases you think about words or cases, and—and the word that keeps coming back to me in this case is—is millennia, plus time,” Kennedy said. True, it’s been more than a decade since Kennedy’s own landmark opinion in Lawrence v. Texas held that states cannot criminalize homosexual sex. In that decade, Kennedy said, “there's time for the scholars and the commentators and—and the bar and the public to—to engage in it. But still, ten years is—I don't even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it—it's very difficult for the Court to say, oh, well, we—we know better.”
This argument appealed to Chief Justice John Roberts, who told Bonauto: “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. Obviously, if you succeed, that core definition will no longer be operable.” Justice Samuel Alito asked, “How do you account for the fact that, 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?”
As long as the consequences of “redefinition” are left to the imagination, they are scary indeed. Alito professed himself puzzled why, if the Constitution requires states to recognize same-sex marriage, it would not require it to marry “two men and two women” or two siblings who loved each other. Justice Antonin Scalia warned that clergy who oppose same-sex marriage would, of necessity, soon be stripped of their licenses. Justice Breyer tried to explain: “It’s called ‘Congress shall make no laws respecting the freedom of religion.’”
The first sign of trouble for the states came in a dog that did not bark: Kennedy, whose respect for federalism is oceanic, seemed uninterested in the question of a state’s sovereign prerogative to exclude same-sex couples from the institution of marriage. But the tide of argument truly seemed to turn when Bursch tried to give shape to the phantom menace posed by same-sex marriage; the only real danger he could point to was that fewer straight couples would marry or stay married, which would lead to more children not being raised by their biological parents. “The out-of-wedlock birth rate in this country has gone from 10 percent to 40 percent from 1970 to today,” he said.
And here the trouble began. “Under your view, it would be difficult for same-sex couples to adopt some of these children,” Kennedy said. “I think the argument cuts quite against you.”
Treacherous ground, indeed. Kennedy built much of his opinion in Windsor v. United States, the Defense of Marriage Act case, around the damage done to adopted children when the federal government refused to recognize their parents’ marriages. And Chief Justice John Roberts, who is most likely in the pro-traditional-marriage camp, is the father of two adopted children. Bursch repeatedly came close to suggesting that adopted families were not as valuable to the state as intact biological ones.
And then, inexplicably, Bursch made one of the worst mistakes imaginable. He attacked Justice Kennedy’s favorite term, “dignity.” Same-sex couples were trying to redefine marriage, he said. “What they are asking you to do, is to take an institution that was never supposed to be dignity-bestowing and make it dignity-bestowing.”
Kennedy seemed almost stunned. “I don’t understand this ‘not dignity-bestowing,’” he said. “I thought that was the whole purpose of marriage ... It’s dignity-bestowing, and these parties say they want to have that same ... ennoblement.”
“Dignity may have grown up around marriage as a cultural thing, but the state has no interest in bestowing or taking dignity from anyone.”
Bursch may get Kennedy’s vote after that miscue, but it’s hard to see how. The exchange illustrates again how gays and lesbians have moved into the slot once occupied by their tradition-minded foes. Gays and lesbians want to love, and commit, and live in dignity among their neighbors, Bursch’s argument suggested. And the state could not care less about that sort of hearts-and-flowers nonsense. “The state doesn’t have any interest in love and emotion at all,” he said.
Emotion was very much on display in the grand courtroom Wednesday. Not only were Alito and Scalia seemingly furious at the idea of same-sex marriage, a protester leapt to his feet after Bonauto’s argument and screamed that “you will burn in hell” and that homosexuality was “an abomination.” Solicitor General Donald Verrilli was about to begin his brief argument for the government (supporting the challengers); Chief Justice John Roberts asked whether he would like to take a moment to get his composure, but Verrilli decided to go forward.
Justice Scalia, who simply cannot keep his mouth shut, then had to say, “It was rather refreshing, actually.”
In the final hour of the argument, Washington lawyer Douglas Hallward-Driemeier badly outclassed Tennessee Associate Solicitor General Joseph F. Whalen on the question of “recognition.” They were, the Chief Justice reminded them several times, to assume that the Court decided states did not have to perform same-sex marriages; would states then be required to recognize same-sex marriages performed out of state? The argument revealed one important fact: that question makes no sense. The challengers must win on both issues, or lose on both.
States almost always recognize out-of-state marriages, even when the parties couldn’t marry in that state. To begin a new practice for couples who move into a state would “forever relegate those marriages to second-class status” and work in particular against the interest of adopted families, Hallward-Driemeier said. One of the couples challenging Tennessee’s ban, he told the justices, Valeria Tanco and Sophie Jesty, had taken their child to the hospital last week. “Tennessee would treat Dr. Jesty not as a mom,” he said, “but as a legal stranger.”
And so the long-awaited day in court ended as it began, with the wish of the gay movement nationwide: a simple, deeply conservative yearning to live with the ones they love; to live in the dignity that everyone knows a marriage license brings; to be regular moms and dads and husbands and wives. That cause may not prevail this spring, but as the argument dissolved, the crowds on the steps had every reason to feel a moment of hope before they returned to their marriages and their lives.