A protester at the Supreme Court this morning starts yelling about hell and homosexuality, shrieking, “The Bible teaches that if you support gay marriage you will burn in hell for eternity.” As he’s dragged from the chamber (he can be heard screaming outside for several minutes more), Justice Antonin Scalia quips that this is “rather refreshing actually.” There is, it seems an Angry Scalia, just as there is an angry Obama.
As for Justice Anthony Kennedy, if we know anything at all about him it is this: You don’t tell him what dignity is, or who has it, or how much it counts. As most Kennedy-watchers well know, to the extent that Kennedy’s vote is in play on most issues, what he is contemplating is dignity. Often balanced against other dignity. He’s the dignity-whisperer.
So there is a rather extraordinary moment Tuesday morning, as the Supreme Court hears historic arguments in the marriage equality cases grouped under Obergefell v. Hodges, when Kennedy finds himself in an argument with John Bursch, Michigan’s special assistant attorney general, about whether marriage is a dignity-conferring enterprise, or not. Bursch, defending his state’s ban on same-sex marriage, is explaining that the purpose of marriage is not to confer dignity but to keep parents bonded to their biological children.
Justice Kennedy—who opened argument Tuesday morning with the observation that this whole case is about an institution whose definition has gone unchanged for millennia—looks rather shocked. The author of the majority decision outlawing sodomy bans in Lawrence v. Texas (“Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons”) and the decision striking down the Defense of Marriage Act in United States v. Windsor (“It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage”) did not want to hear this. Indeed, it seems like Kennedy wanted it to be perfectly clear that he is the guy who gets to say that if marriage is nothing else, it is a dignity-stamper.
Bursch explains that if marriage is expanded to include same-sex couples, the whole purpose of the institution will change. According to him, that view of marriage is “keeping the couple bound to that child forever,” whereas the new purpose (once gay couples are allowed to wed) will be about “their emotional commitment to each other.” This presumably less noble view of marriage will then proliferate, and result in illegitimacy, which the state seeks to avoid. Kennedy looks stunned. “That assumes that same-sex couples could not have a more noble purpose, and that’s the whole point. Same-sex couples say, of course we understand the nobility and the sacredness of marriage,” says Kennedy, the presumed swing vote. “We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”
Later in the argument, Bursch circles back to say, again, “marriage was never intended to be dignity bestowing.” At which point Kennedy almost bursts a pipe: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”
Bursch replies that the “state is trying to figure out how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.” Anthony “Dignity” Kennedy can’t even believe it: “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.” It seems to me that nobody puts Dignity Kennedy in the corner. Not even Michigan.
If opponents of marriage equality do lose Kennedy—as has been widely predicted—it could be because of exchanges like this one, in which Kennedy is told that the state interest in barring same-sex couples has something to do with the vague and inchoate claim (we’ve called it the whoopsie baby) that as soon as gay couples get marriage, straight couples won’t want it anymore, and this will happen in tandem with straight couples wildly impregnating each other, thus increasing illegitimate births, abortions, and perhaps also car fatalities and ACL injuries. There are many, many problems with that argument, as Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, and others point out Tuesday morning. Chief among them is the problematic idea that as soon as gay couples discover something (like cheese! Or banjos!) straight people will flee from there. This is the argument Bursch can’t seem to answer. And it’s why he has to keep arguing that the sole purpose of marriage is legitimizing procreative biological relationships.
But just how does this hurt regular marriage? As Ginsburg puts it: “How could that be? Because all of the incentives, all of the benefits that marriage affords would still be available. So you’re not taking away anything from heterosexual couples.” Or as Justice Sonia Sotomayor asks: “How does withholding marriage from one group, same-sex couples, increase the value to the other group?”
This is where Bursch keeps saying that straight people must marry for biological bonding reasons whereas gay couples marry for emotional connection and that one is about to morph into the other because “ideas matter” and “changes matter.” Sotomayor notes that this obsession over the biological bond ignores the state incentives for adoption. Bursch replies “Right. I mean, that’s a situation where the child doesn’t have their biological mom and dad anymore for whatever reason, and so that’s a different state interest.” Throughout the argument, Bursch grants adoptive parents a slightly lesser bond than biological parents, which is a strange tactic before a court with two members, Chief Justice John Roberts and Justice Clarence Thomas, who have adopted children, and who might not believe that their bonds are the state’s sad fallback.
But the other problem with the procreation-only argument is: What about old people? As Ginsburg ponders, “What if a 70-year-old couple wants to get married?” People cheer and applaud. Kennedy notes that Bursch’s premise “that only opposite-sex couples can have a bonding with the child” was “just a wrong premise,” adding “under your view it would be difficult for same-sex couples to adopt some of these children. … I think the argument cuts quite against you.”
It is so strange to contemplate that ours is the sort of hyper-puritanical society that can’t acknowledge that the reason people marry is some combination of procreative purpose, emotional connection, and sex. That thankfully we needn’t pick just one. But oral argument proceeds like a Save the Children video, in which one must choose a single, lofty reason for marriage, close your eyes, and think of the queen.
The other unexpected turn Tuesday morning is that as the argument opens, the same justices who would rather yank out their own wisdom teeth than cite international law or custom, have suddenly become citizens of the world. As Justice Samuel Alito puts it: “Well, how do you account for the fact that, as far as I’m aware, 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?” Alito will go on to talk about ancient Greece. Scalia will mention the Netherlands.
Justice Scalia will also worry—at some length—that clergy will be forced to perform gay marriages over their religious objections. Chief Justice Roberts agrees. Finally, an exhausted Justice Breyer stops this with an exasperated reminder about the First Amendment: “It’s called, Congress shall make no law respecting the freedom of religion.”
It’s an amazing argument Tuesday morning (and a lengthy one), ranging over all of human history and geography, religious conscience, Plato, and eventually coming to rest—as we all suspected it might—at Justice Anthony Kennedy. It’s not clear from anything that happened Tuesday morning that he will halt his march toward dignity for same-sex couples.
At the very end of the morning, Douglas Hallward-Driemeier, arguing the second question briefed in the case—about whether states can be forced to recognize same-sex marriages from other states—puts a face on his clients. He talks about what it means not to be allowed to visit your daughter in the hospital, or being moved with your family to an army base in a state that dissolves your marriage regardless of where it was solemnized. Usually, these kinds of deeply personal and emotional arguments ring a bit sentimental at the rarefied planet that is the high court. But, today, they’re powerful precisely because when we truly talk about dignity, it’s theirs that’s on the line.