History Matters in the Marriage Equality Case—So Why Are Some Justices Ignoring It?

Same-sex marriage supporter Ryan Aquilina holds a sign near the Supreme Court, April 28, 2015.

Drew Angerer/Getty Images

Jon Stewart recently mocked Congress for congratulating itself for passing a law—that is, for doing its job. I thought of this quip as oral arguments got under way yesterday for the Supreme Court’s historic marriage equality cases. Why, several justices wanted to know right off the bat, should we declare a right for gay couples to wed when we’ve never done so before. “This definition,” said Justice Kennedy, speaking of straight-only marriage, “has been with us for millennia. And it­ it’s very difficult for the court to say, ‘oh, well, we know better.’”

Indeed the justices dwelled inordinately yesterday on the role of tradition, religion and the “democratic process,” lofty concepts that have a place—but a limited one—in modern jurisprudence. “Every definition that I looked up prior to about a dozen years ago,” fretted Chief Justice Roberts, “defined marriage as unity between a man and a woman.” If the plaintiffs were to win, that definition, he claimed, would die. Justice Alito pointed out that even homosexuality-tolerant ancient Greece did not let gays get hitched, suggesting that anti-gay prejudice could not be the basis for banning gay marriage. Justice Breyer, a reliable liberal vote, picked up on the idea, putting Kennedy’s question about millennia of straight-only marriage even more starkly:

The opposite view [that marriage is heterosexual only] has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require States that don’t want to do it to change what marriage is to include gay people. Why cannot those states at least wait and see whether in fact doing so in the other States is or is not harmful to marriage?

Justice Scalia raised a related issue, saying the real question was not “whether there should be same­-sex marriage, but who should decide the point. And you’re asking us to ­decide it for this society when no other society until 2001 ever had it.”

There are several retorts to the question of why a court should step in and establish that gays have the fundamental right to marry the person they choose. For starters, it’s the actual job description of the judiciary to interpret the law, a process that, contrary to originalist protestations, requires incorporating each generation’s evolving understandings of complex concepts like privacy, liberty, and dignity. (If I told my boss I couldn’t write a report because I hadn’t written it before, she’d replace me right quick.) Kennedy wrote movingly of this evolution in his 2003 Lawrence opinion ending sodomy bans: “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

A second reason not to blindly defer to the weight of tradition seems so self-evident as not to merit mention—except given yesterday’s oral arguments, it apparently does: Just because something has always been done one way doesn’t mean that was the right way or that it’s still the right way. Any other form of reasoning is a recipe for total stasis. Justice Breyer offered the most obvious example of why “it has always been thus” is the weakest possible rationale for a disputed law. “You could have answered that one the same way we talk about racial segregation,” he said, answering his own earlier question. For millennia, most societies were organized around slavery or other unfair labor arrangements, including exploiting women’s labor; eventually that became unacceptable to many societies. Why can’t now be the point when stigmatizing and excluding gay people becomes unacceptable to ours?

Such a step, by the way, does not ask judges to legislate from the bench; it simply requires them to reflect how American society has already evolved to recognize the previously ignored humanity of gay people. As Robbie Kaplan put it in arguing the 2013 Windsor case that struck down the Defense of Marriage Act, that law was based on “an incorrect understanding that gay couples were fundamentally different than straight couples, an understanding that I don’t think exists today.”

Finally, the whole premise of marriage as an unchanging institution across thousands of years is a myth, as numerous people have repeatedly pointed out. An exchange between Justice Ginsburg and Mary Bonauto, the lawyer arguing for marriage equality, raised this point directly. A millennium ago, Ginsburg noted, marriage was “a dominant and a subordinate relationship” between a man and a woman, in which the man made all decisions and the woman was considered his property. Bonauto agreed. “Because of equality and changing social circumstances” over the last century, the way the law sees those gender differences within marriage have fallen away. As it’s now understood, Bonauto said, marriage “is a system in which committed, same-sex couples fit quite well.” In other words, it’s not gays and lesbians who are seeking to change marriage; the institution has always been changing, and given how the law currently views it, there’s no good reason to exclude gay couples.

In the dramatic 2010 trial challenging California’s marriage ban, Prop 8, the Harvard historian Nancy Cott explained how American marriage is a recent innovation, since most of the world at the time the United States was founded practiced polygamous marriages, not those of one man and one woman. Looking to history, she testified, clearly shows that marriage has long had many different purposes, including maintaining social order, forming stable households, distributing economic benefits, and cementing ties of affection. Procreation was just one among several, undercutting the narrow, biology-based arguments of the lawyers defending gay marriage bans.

Part of the reason the justices raised the issue of “millennia” of straight-only marriage was to suggest that animus, moral disapproval, and religious faith—all constitutionally impermissible rationales—are not the only reasons a state might opt to ban gay marriage. If all these cultures for all this time—even ancient Greece!—refused to allow gay marriage, there could be any number of rational bases for that position, goes the argument. As a result, its proponents conclude, the “democratic process” should be allowed to play out.

But that’s just another excuse for the justices not to do their job. It’s true that marriage was never originally designed as a way to demean gay people. But it must be remembered that the vast majority of states with current bans on gay marriage created those laws or constitutional amendments recently. Bonauto allowed that not all the laws were necessarily motivated by animus. “Times can blind,” she said, quoting Kennedy’s Lawrence decision, “and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded.” In other words, ignorance rather than malice could account for anti-gay laws.

Yet whether animus was the point or the result, the effect is the same. As the legal scholar Kenji Yoshino explained in Slate, “the Supreme Court has found that even when state institutions are not created with discriminatory intent, they can be maintained with such intent in a manner that renders them constitutionally invalid.” And as Slate’s Dahlia Lithwick wrote yesterday, even the best arguments for gay marriage bans fail the rational basis test, as they too rely on animus—on the “problematic idea that as soon as gay couples discover something (like cheese! Or banjos!) straight people will flee.”

As for letting the democratic process play out, attending the arguments yesterday made clear to me just what an empty platitude that is. It may be that the courts are the least democratic branch of government, but a legal proceeding is, in every sense, beautiful, Whitmanesque democracy in action, just as our founders envisioned it. Concerned about a “tyranny of the majority,” they put safeguards in place to ensure minority rights. They established deliberative bodies with checks and balances, and a judiciary to hash out, in the most rational context possible, the proper application of the law. Inside and outside the courtroom—and for years leading up to this case in all corners of the nation—I heard heated discussions across different faiths, sexual orientations, races, and classes about the rights and goods our country should promote—spurred by scores of lawsuits around marriage. Religious protestors in front of, and inside, the courtroom, freely expressed their beliefs. A free and robust press corps reported on every aspect of the case. More than thirty plaintiffs—ordinary Americans—perceiving a legal injury, had their day in court.

“The American people have been debating and discussing” gay marriage for decades, Bonauto said yesterday. “It has been exhaustively aired.” Solicitor General Donald Verrilli, arguing for the Obama Administration, added: “Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.”

At some point, justice once denied must finally be granted. Those are the moments when we become a more perfect union. Times, indeed, can blind, and only blindness can keep this moment from becoming a new era of dignity for married gay couples.

Read more of Slate’s coverage of gay marriage at the Supreme Court.