WASHINGTON — As the arguments unfurled in Tuesday’s case on same-sex marriage, the Supreme Court justices sounded more and more cranky.
Things were moving too fast for them.
How could the nine, cloistered behind velvety rose curtains, marble pillars and archaic customs, possibly assess the potential effects of gay marriage? They’re not psychics, after all.
“Same-sex marriage is very new,” Justice Samuel Alito whinged, noting that “it may turn out to be a good thing; it may turn out not to be a good thing.” If the standard is that marriage always has to be “a good thing,” would heterosexuals pass?
“But you want us to step in and render a decision,” Alito continued, “based on an assessment of the effects of this institution which is newer than cellphones or the Internet? I mean, we do not have the ability to see the future.”
Swing Justice Anthony Kennedy grumbled about “uncharted waters,” and the fuddy-duddies seemed to be looking for excuses not to make a sweeping ruling. Their questions reflected a unanimous craven impulse: How do we get out of this? This court is plenty bold imposing bad decisions on the country, like anointing W. president or allowing unlimited money to flow covertly into campaigns. But given a chance to make a bold decision putting them on the right, and popular, side of history, they squirm.
“Same-sex couples have every other right,” Chief Justice John Roberts said, sounding inane for a big brain. “It’s just about the label in this case.” He continued, “If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend,’ but it changes the definition of what it means to be a friend.”
Donald Verrilli Jr., the U.S. solicitor general arguing on the side of same-sex marriage, told the justices, “There is a cost to waiting.” He recalled that the argument by opponents of interracial marriage in Loving v. Virginia was to delay because “the social science is still uncertain about how biracial children will fare in this world.”
The wisdom of the Warren court is reflected two miles away, where a biracial child is faring pretty well in his second term in the Oval Office.
The American Academy of Pediatrics last week announced its support for same-sex marriage, citing evidence that children of gays and lesbians do better when the couples marry. It may take another case, even another court, to legitimize same-sex marriage nationally, but the country has moved on. An ABC/Washington Post poll showed that 81 percent of Americans under 30 approve of gay marriage. Every time you blink, another lawmaker comes out of the closet on supporting the issue.
Charles Cooper, the lawyer for the proponents of Proposition 8, which banned same-sex marriage in California, was tied in knots, failing to articulate any harm that could come from gay marriage and admitting that no other form of discrimination against gay people was justified. His argument, that marriage should be reserved for those who procreate, is ludicrous. Sonia Sotomayor was married and didn’t have kids. Clarence and Ginny Thomas did not have kids. Roberts’ two kids are adopted. Should their marriages have been banned? What about George and Martha Washington? They only procreated a country.
As Justice Stephen Breyer pointed out to Cooper, “Couples that aren’t gay but can’t have children get married all the time.”
Justice Elena Kagan wondered if Cooper thought couples over the age of 55 wanting to get married should be refused licenses. Straining to amuse, Justice Antonin Scalia chimed in: “I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, “Are you fertile or are you not fertile?”’
Scalia didn’t elaborate on his comment in December at Princeton: “If we cannot have moral feeling against homosexuality, can we have it against murder?”
Cooper replied that a 55-year-old man would still be fertile, which was a non sequitur, given that he hails marriage as a bulwark against “irresponsible procreative conduct outside of marriage.”
He said that California should “hit the pause button” while “the experiment” of gay marriage matures. And he urged that we not refocus “the definition of marriage away from the raising of children and to the emotional needs and desires of adults.” Did he miss the last few Me Decades?
The fusty legal discussion inside was a vivid contrast with the lusty rally outside. There were some offensive signs directed at gays, but the vibrant crowd was overwhelmingly pro same-sex marriage. One woman summed it up nicely in a placard: reading “Gays have the right to be as miserable as I make my husband.”
The only emotional moment in court was when Kennedy brought up the possible “legal injury” to 40,000 children in California who live with same-sex parents. “They want their parents to have full recognition and full status,” he told Cooper. “The voice of those children is important to this case, don’t you think?”
While Alito can’t see into the future, most Americans can. If this court doesn’t reject bigotry, history will reject this court.
Maureen Dowd is a columnist for The New