Arguing before the Supreme Court is no easy assignment. An attorney doesn’t control her own time, for the Justices with their questions can take as much of it as they wish. Advocates must also deal with the Justice who delights in erudite references to unfamiliar sources, and no matter how prepared a lawyer is, a Justice’s questions may raise issues the lawyer has not previously considered. Still the attorneys arguing on behalf of the same sex couples disappointed by missing an argument with outcome-swaying potential.
The attorneys on both sides of this issue were mainly concerned with persuading one man, Justice Kennedy, since the other Justices seem almost certain to split 4-4 on the issue. In keeping with this equal division Kennedy seems to be split internally. In the three most recent gay rights cases, all decided by a 5-4 vote, all favoring the gays’ position, and all of which he authored, Kennedy appears to have been motivated by a deeply rooted conviction that the challenged laws reflected an animus toward gays and toward homosexual behavior. In this case, Kennedy appears torn between a sense that laws outlawing same sex marriages reflect a similar animus and a willingness, if not a desire, to credit the states’ claims that their challenged laws are legitimated by history, for they do nothing more than enshrine a definition of marriage that has served society well for thousands of years and has at its heart a relationship between a man and a woman. The oral argument and the all parties’ briefs were written as if giving legal life to an age-old definition of marriage was the sum total of what the constitutional amendments barring same sex marriage did. Accepting this premise, the lawyers for the couples argued that in this day and age it is unconstitutional to enact as law a heterosexual definition of marriage because defining marriage this way is discriminatory and admits of no rational defense. The lawyers for the states argued that the amendments barring same sex marriage were legitimately aimed at protecting the viability of families of procreation, and that they had been adopted with support so broad as to demand respect for democratic processes and negate the possibility that animus toward gays was a likely motivation.
But the amendments in question did more than write a long-understood definition of marriage into law. The most detailed language is Ohio’s:
“Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”
Two of the three other states with amendments at issue used fewer words than Ohio but clearly barred civil unions along with same sex marriage. The extension of the same sex marriage ban to civil unions, and in Ohio to relationships offering even less recognition, goes well beyond preserving a definition of marriage. The amendments are designed to keep future legislatures from extending to same sex couples marriage-like rights significant enough to suggest respect for the commitments gay partners make to each other. In going beyond the highlighted purpose of maintaining a millennia-old definition of marriage, the amendments make their discriminatory intent, rooted in hostility toward gay relationships, obvious. Rather than accommodate same sex commitments with a legal status short of marriage, they bar extending any such rights through the normal legislative process.
Justice Kennedy without focusing on the breadth of the challenged amendments, may decide (as he did in his opinion overturning the Defense of Marriage Act) that restricting marriage to heterosexual couples serves no legitimate state interest and can only be explained as a product of animus toward homosexuality and their relationships. Still supporters of same sex marriage would have reason to feel better about their chances if in oral argument the language of the amendments had been referenced and their discriminatory import underlined.