It is one of the — if not the — utmost legal battles that will likely define our lifetime when the early 2000s are written about later in history books: does the U.S. Constitution give same-sex couples the right to marry, or does it all but explicitly forbid them? Is it a matter we should leave up to the states, or is it a decision that should be made at the federal level?
On Tuesday, the U.S. Supreme Court heard arguments for and against the constitutionality of federal legalization of same-sex marriage. If same-sex marriage wins this time, this would be it. No more legal battles over whether or not your marriage that took place in New York is valid in Tennessee. Same-sex marriage would be legalized. Everywhere. For good.
The justices seemed to be fairly evenly divided among conservative and liberal lines, and Justice Anthony Kennedy held the deciding vote. He did not seem certain, however, about which way his vote would go, according to The New York Times.
Kennedy’s main qualm about voting for the legalization of marriage was whether the Supreme Court has the power to change a definition of the institution of marriage — its quality of being between one man and one woman — that has survived for hundreds of years. However, he also questioned whether or not it is morally right to exclude gay people from being able to be a part of that institution.
Chief Justice John Roberts Jr. expressed worries about having to be the sole body to end a fast-moving and long-standing societal debate. The Supreme Court has long had a policy of not wanting to, and not being constitutionally able to, infringe on states’ rights. However, now, they are left with no choice. A decision must be made, and it will likely be made soon.
Roberts said at the beginning of the arguments that he had looked up definitions of marriage and was hard-pressed to find one that did not mention its quality of being between a man and a woman. “If you succeed, that definition will not be operable … You are not seeking to join the institution,” he said, according to the Times. “You are seeking to change the institution.”
This definition “has been with us for millennia,” Kennedy said. “It’s very difficult for the court to say, ‘Oh, we know better.’”
Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan were all vehemently in support of the legalization of same-sex marriage.
“You are not taking away anything from heterosexual couples” by allowing same-sex couples to marry, said Ginsburg, with Breyer questioning why same-sex couples “have no possibility to participate in that fundamental liberty.”
There were concerns voiced by the more conservative judges about the Court’s place in changing history, and the recentness of the debate over same-sex marriage. Nowhere in any literature from the past two decades, Roberts said, was marriage defined in any way but between a man and a woman. Is it really the Court’s responsibility to be the sole deciding factor on changing this?
In a word, yes.
The Supreme Court’s job is to ensure that the Constitution stays relevant throughout history. So why would the Supreme Court not be the sole deciding factor on whether or not same-sex couples can legally marry everywhere? They’re worried about being the one to change the definition? That’s their job. What else are they here for?
When laws don’t work anymore, the Supreme Court is the one to change them. Think about Brown v. Board of Education of Topeka, or Roe v. Wade: important decisions that changed history forever, for the better, and they were made by the Supreme Court. It is the Court’s express job in the Constitution to make decisions when the laws steering the country are no longer relevant. And any laws barring anyone, gay or straight, from getting married have lost their modern day relevancy.
Like Ginsberg said, we are not harming straight couples by allowing gay couples to get married. Straight marriages do not mean anything different from gay marriages, regardless of whether or not attorney John Bursch, who argued against the legalization of same-sex marriage in front of the justices, believes that it will stop people from believing that “marriage and creating children have anything to do with each other.” Anyone who thinks that straight marriage is objectively always a sacrosanct and holy institution is, frankly, deluded. Former U.S. Rep. Newt Gingrich, who has been extolling the virtues of “traditional” marriage forever, has been divorced three times.
And while we’re on the topic, whether or not marriage involves even having children in the first place is a separate issue, and one that should not be discussed when discussing same-sex marriage. People are not getting married to procreate; they are getting married to form a legal commitment between two people. Procreation is an issue outside of the law.
Roberts’ statement that he “can’t find a definition of marriage” from recently that doesn’t define it as being between a man and a woman is not taking into account that things change. Once upon a time in this country, women couldn’t vote, black people couldn’t go to school and people of different races couldn’t drink from the same water fountain or use the same bathroom.
His statement is the opposite of what society is supposed to do: evolve. We change school curriculums when our students are not performing up to standard. We change transportation procedures when an unprecedented winter keeps public transportation from working efficiently. The whole point of the Supreme Court is to change and redefine the Constitution to ensure it stays relevant, and if they’re not doing their very job, what is the point? It’s not like there weren’t gay couples that wanted to get married 12 years ago; it’s that they were afraid of getting killed for asking for equality.
Scalia’s argument that the approval of same-sex marriage would inevitably force members of the clergy to perform same-sex marriages against their will violates the right of equal protection under the law. People should not be discriminated against because they do not conform to the religious ideal of one religion. The law isn’t saying, “if you are a priest, you must marry at least one gay couple”— they have the freedom to say no, even if this law passes.
In the same Bible that apparently warns against man lying with man, there are also passages stating that one cannot eat shrimp or wear mixed fibers. And while some people may still follow these standards, the world has evolved past many other Bible verses. Religion is not politics and vice versa. The choices a person makes in their own life is up to them, as long as they are not hurting anyone else. And same-sex couples getting married is absolutely not hurting heterosexual couples.
If we make the change now, this will be a standard defined by the Constitution. We have had a conversation about freedom of religion. We have had a conversation about freedom to go to the same school as someone with a different skin color. Why is a conversation about freedom of marriage so scary?
This isn’t a religious issue. This isn’t a political issue. This is an issue of basic human rights.
This issue is not about getting married. It’s about freedom of speech. If the Supreme Court passes gay marriage, the next step will be penalizing any group which disagrees. The Catholic Church or any other organization, which preaches against gay marriage will have their tax exempt status removed. This will kill many organizations.