On Tuesday, April 28, the U.S. Supreme Court heard oral arguments for what certainly will be a historic decision on same-sex marriage. Chief Justice John Roberts boiled the argument down to the fundamental issue: “You’re not seeking to join the institution,” he said. “You’re seeking to change what the institution is.” I offer below a summary of a few select points made during this round of arguments.
Anti-Gay Sentiment Based On Prejudice, Hatred And Bigotry?
Supporters of same-sex marriage argued that the definition of marriage as between persons of the opposite sex is rooted in irrational discrimination . In response, Justice Samuel Alito pointed out that in civilizations such as ancient Greece, it was common practice for males to have homosexual relationships, yet marriage was still defined as between a man and a woman. A pagan, pre-Christian society, the Greeks based their definition of marriage on reality and reason—not on hatred or on any faith-based teaching against homosexual acts. Indeed, that society recognized the biological difference between same-sex and opposite-sex couples, and the implications such relationships had for procreation, formation and stability of families, and building the body politic.
Alito stated that such cultures “did not frown on homosexuality.… It was well accepted within certain bounds,” and “people like Plato wrote in favor of that.” Challenging same-sex marriage proponents, he asked, “So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”
Chief Justice Roberts, and Justices Anthony Kennedy, Antonin Scalia and Stephen Breyer joined in arguing the historical point, expressing their hesitancy to rule against the wisdom and reasoning of the thousands-year-old definition of marriage, which they found to be universal across the ages, throughout the world—up until the last 10 years. Justice Kennedy stated: “This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better.’”
Why Does The Government Intrude On Private Relationships?
Arguments in favor of same-sex marriage appear to be self-contradictory. While arguing that the government should not intrude and should not be involved in deciding who people can love, such arguments simultaneously argue for the government’s involvement in private, homosexual relationships, demanding that the government sanction, recognize and extend benefits to such relationships.
It is not the place of government to regulate personal relationships. No one needs the government’s permission to have a relationship or to love another person. We can be friends with and love whomever we want. The ONLY reason why the government ever gets involved in personal relationships is when there is an implication for children. When kids are involved, the state has a legitimate interest and can justifiably intrude and regulate certain aspects of a relationship, as needed for the good of the children. This is why the law provides a definition of marriage, and extends certain benefits to that relationship. As attorney John Bursch stated: “It’s about binding children to their biological moms and dads.”
Justice Ruth Bader Ginsburg pushed back against the procreation argument, stating that 70-year-olds are allowed to marry. I would respond that, although some couples are infertile, they are still capable of performing a conjugal act naturally ordered towards procreation. Also, good policy should not be based on exceptional circumstances, lest the exception swallow the law. Good policy should be written to promote and facilitate the ideal, even if that ideal is not always practically achievable in every circumstance.
State Laws – Not New Constitutional Rights – Allow For Religious Liberty Exceptions
The U.S. Constitution is completely silent on the definition of marriage. Thus, the marriage issue has been left by the founders of our nation to be regulated on the state level. If the Court creates a new fundamental right to same-sex marriage, the religious liberty consequences  for religious institutions that teach against homosexual acts, such as Catholic schools, will be dire, ranging from civil penalties to being stripped of tax-exempt status.
Alito pointed out that if marriage is regulated through state law, exceptions for religious liberty can be made; but if a new constitutional right is created, there will be no relief for religious and other similar institutions: “If you let the states do it, you can make an exception. . . . You can’t do that once it is a constitutional proscription.”
Justice Kennedy: The Deciding Vote?
Based upon his voting history, many anticipate that Kennedy will be the deciding vote—in favor of same-sex marriage. Kennedy authored all three of the recent landmark Supreme Court cases involving same-sex marriage (Romer v. Evans (1996), Lawrence v. Texas (2003), and U.S. v. Windsor (2013)). These cases all had the effect of expanding the protection of homosexual activity.
Although Kennedy agreed with the historical argument and acknowledged that we don’t have “the social science” on how same-sex marriage affects children, he also said that homosexual couples “understand the nobility and sacredness of marriage,” noting that, even if they can’t procreate, they feel that they “have a dignity that can be fulfilled.”
These few points are only the tip of the arguments raised. As some of the Justices have recognized, this is a heavy issue for nine people to decide. As Justice Scalia stated, “The issue, of course, is not whether there should be same-sex marriage, but who should decide the point.”