Scalia: ‘Why No Ancient Greek Gay Marriages?’
Garth Kant | April 28, 2015
Protesters hold a pro-”gay”-rights flag outside the US Supreme Court on April 25, 2015.
WASHINGTON – The most dramatic moment in a historic case before the U.S. Supreme Court on the constitutionality of same-sex marriage Tuesday morning came after the first attorney had wrapped up her argument.
“Gay marriage is an abomination in the eyes of God!” suddenly screamed a protester in the courtroom.
After continuing his protest, the man was escorted from the courtroom.
Justice Antonin Scalia quipped, “That was refreshing, actually,” causing loud laughter to ripple through the courtroom.
Scalia’s approval of ancient wisdom echoed his previous referral to the ancient Greeks and Romans to argue against government sanctioning of same-sex marriage.
The justice noted the Greeks and Romans had no moral disapproval of homosexual relations, yet neither culture ever considered approving same-sex marriage. The implication was that those cultures must have found it would cause some sort of harm to society.
Scalia used the same example to indicate that modern state laws defining marriage as solely between a man and a woman were not motivated by dislike of, or discrimination against, gays.
He asked attorney Mary Bonauto, who argued in favor of same-sex marriage, if it was true that homosexual relationships but not marriages were sanctioned by those cultures.
When she said yes, Scalia continued, “So their exclusion of same-sex marriage was not due to prejudice, right?” Adding, unless she considered Plato prejudiced.
Bonauto replied she could not speak for ancient philosophers but was immediately cut off by liberal Justice Stephen Breyer, who, perhaps surprisingly, picked up the conservative Scalia’s line of argument.
Breyer noted heterosexual marriage has been the law everywhere for thousands of years, and suddenly Bonauto was asking for immediate change.
“Why can’t these states wait and see” if state experiments in gay marriage lead to harm before making it the law of the land?
Bonauto answered that under the 14th Amendment’s equal-protection clause, the same-sex couple she represented should not have to wait, and neither should any gay couples in the country. Furthermore, she claimed, changes to previous marriage laws, such as eliminating prohibitions to inter-racial marriage, had been greatly unsettling to many people, but it was still the right thing to do.
Scalia countered that he understood that argument, but if her side prevailed, it would effectively end the debate.
“People will feel disenfranchised” if they don’t get a chance to vote on such an important question, he said.
Bonauto had argued that “gays” deserve equal dignity under the law and can’t be relegated to second-class status by denying them what she portrayed as a right to marriage.
She also maintained that same-sex marriages actually help keep the foundation of society stable.
But a number of justices expressed the same skepticism voiced by Scalia and Breyer, based on the historical and traditional definition marriage.
Justice Anthony Kennedy said Bonauto was seeking to change what has been the norm for millennia, and it was “very difficult for us to say we know better.”
Justice Samuel Alito asked how she could account for the fact there has never been a nation or culture that has recognized same-sex marriage.
“Do you think they have all been dealing in stereotypes?” he wondered.
Bonauto had just claimed the state laws excluding same-sex marriage were based on moral judgments and stereotypes.
Scalia asked, “Do you know of any society prior to the Netherlands in 2000 that legalized gay marriage?”
She did not.
Chief Justice John Roberts was wary that she was seeking not just to change marriage but the definition of marriage.
And Scalia added he was concerned about the effect changing the Constitution could have on peoples’ religious convictions.
He noted that if the question were left to the states instead of the courts, the people could make exceptions, such as not requiring priests to perform same-sex weddings. But that would not be the case if she were to win and a right to same-sex marriage becomes constitutional law.
Despite expressing some skepticism about imposing such a great change on society, Breyer did call marriage a fundamental liberty and suggested denying it to gays would be discriminatory.
Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor all questioned how allowing same-sex marriages would harm heterosexual marriages and how denying same-sex marriages would strengthen heterosexual marriages.
There were two important questions before the court:
- Can states define marriage as only between a man and a woman?
- And, can one state refuse to recognize the legality of a gay marriage performed in another state?
The court is expected to issue a decision in June. In addition to considering the two-and-a-half hours of oral arguments made Tuesday, justices will consider these key issues argued in briefs submitted by attorneys:
- Should the legality of gay marriage be decided by the people or the courts?
- Do laws preserving traditional marriage target gays? Or do those laws ignore them while protecting traditional marriage?
- Does federalism protect states’ rights to define marriage? Or do state laws protecting traditional marriage violate the equal protection clause of the 14th Amendment?
- That is, does the 14th Amendment’s equal protection clause trump the Constitution’s full faith and credit clause in Article 4 guaranteeing states’ rights to make their own laws?
- Did the “United States v. Windsor” decision that invalidated parts of the the Defense of Marriage Act, by resting on the federalist principle that states may decide such issues, mean that same principle should uphold states’ traditional marriage laws?
Do gays deserve a special protected status? Or is it not the equivalent of, say, racial discrimination because neither gender is targeted or discriminated against?