The Supreme Court’s recent hearings on cases involving gay marriage offered some relief from the storm of protests and media coverage raging outside the courtroom doors. In sharp contrast to the tone of our national debate, the justices and lawyers operated under a code of decorum, reason and humility. Their careful discussion centered on jurisprudence, such as the states’ right to regulate marriage verses the federal government’s practical need for a uniform definition in tax law. This focus on technical questions indicated the justices may avoid the larger issue.
The technical questions, though, bear on the larger issue more than one might think. One in particular seemed telling: In considering the Defense of Marriage Act (DOMA), the justices wanted to know why President Obama is appealing a decision he claims to support. Lower courts ordered the President to give homosexual married couples the same tax breaks as heterosexual married couples, and he purports to agree. How can he appeal and then refuse to defend his appeal? As Chief Justice John Roberts said, “I don’t see why he doesn’t have the courage of his convictions and execute not only the statues, but do it consistent with his view of the Constitution.” Justice Antonin Scalia worried, “I’m wondering if we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.”
Nestled within the legalese was a more simple dialogue about the merits of gay marriage. Charles Cooper, defending California ’s Proposition 8, asserted that “redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults.” Opposing him, Theodore Olson argued that Proposition 8 “walls off gays and lesbians from marriage, the most important relation in life, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal and not okay.”
Olson used the popular argument that homosexual marriage is comparable to interracial marriage, but it seemed to fail. Justice Anthony Kennedy pointed out that when the court overturned laws prohibiting interracial marriage, such marriages had been occurring for hundreds of years in other countries. “The problem with the case,” he said, “is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters.” Chief Justice Roberts was also suspicious of the comparison to racism: “I’m not sure that it’s right to view this as excluding a particular group. . . . The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.” Justice Samuel Alito complained, “You want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet.” Referring to California ’s civil union laws, the chief justice wondered whether homosexual couples were seeking only for a label. Olson confirmed this idea, saying, “It is like you were to say you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very very critical.”
Altogether, the court seemed to believe gay marriage constitutes an unprecedented change and, at least in the state of California , this battle is over a single word. The remaining argument, then, was that our nation’s new conception of homosexuality has altered the meaning of the law. When Justice Scalia probed, “When did it become unconstitutional to exclude homosexual couples from marriage?” the counsel said there is no specific date. He asserted that homosexual marriage became a constitutional right “when we –as a culture determined that sexual orientation is a characteristic of individuals that they cannot control.”
Granted, this is true in a sense; today, even in conservative circles, most people believe homosexual orientation is a physical condition that is not chosen and cannot be erased through medicine or therapy. The next step in this argument, though, constitutes a fantastic leap: Roberta Kaplan, arguing against DOMA, claimed that America has reached “a moral understanding today that gay people are no different and that gay couples’ relationships are not significantly different from the relationships of straight married people.” DOMA, she said, was based on “an incorrect understanding that gay couples were fundamentally different from straight couples, an understanding that I don’t think exists today.”
Kaplan is suffering from wishful thinking. It has not yet been a year since President Obama changed his stance, and today more than 30 of the 50 states have laws banning gay marriage outright—there’s no consensus. Her implicit hope that consensus is around the corner is not likely to be realized because the procreative act is unmistakably distinct from other sexual acts. The difference between homosexual and heterosexual is the difference between man and woman. Is this not fundamental? As Cooper said in his closing argument, that is not a hard question. The distinction is biological, not moral. We may or may not attach moral meaning to the difference.
Looking forward to June, the Supreme Court might punt the issue elsewhere or rule that homosexual couples deserve the tax breaks of married couples. But the natural distinction between homosexual and heterosexual cannot be lost on these judicious men and women. Thus a ruling that the Constitution forbids a state from making the distinction is not probable. Judging from his convoluted legal-political stance, the President foresees this too.