Now that the U.S. Supreme Court has taken up the broad question of whether marriage is a constitutionally protected right for same-sex couples, a nationwide victory may be less than two months away.
There were no surprises in last week’s hearings. Opponents of marriage equality had nothing new to say. They made the same unconvincing claims that failed to win a majority vote two years ago in Windsor, the case that overturned the Defense of Marriage Act: 1. “traditional” marriages need to be protected; 2. marriage exists solely to regulate procreation; and 3. marriage equality is a scary social science experiment.
At the hearings, women were the heroes in support of marriage rights for lesbians and gay men. Mary Bonauto was brilliant—she’s a McArthur genius, after all—and Justices Ginsburg, Kagan and Sotomayor refuted one preposterous claim after another.
In her opening statement, Bonauto succinctly stated the case for equal rights:
The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society. If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.
Indeed, the abiding purpose of the Fourteenth Amendment is to preclude relegating classes of persons to second-tier status.
When Justices Kennedy (aka, the swing vote) and Alito asserted that marriage is an institution that has been unchanged for millennia, Bonauto and Ginsburg played feminist tag team, schooling the court about the evolution of women’s rights. Ginsburg pointed out that feminist advances paved the way for same-sex couples to marry. “A millennium ago,” she noted, marriage was “a dominant and subordinate relationship…There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian.”
Bonauto chimed in:
That’s correct. I mean, for centuries we [the U.S.] and Europe had this coverture system where a woman’s legal identity was absorbed into that of her husband and men and women had different prescribed legal roles. And again, because of equality and changing social circumstances, all of those gender differences in the rights and responsibilities of the married pair have been eliminated. And that, of course, is a system in which committed, same-sex couples fit quite well.
Later in the hearing, Kagan shut down a line of questioning introduced by Scalia, who fretted that clergy would be forced to marry gay people if marriage was ratified as a constitutional right. “Ms. Bonauto,” said Kagan, “maybe I’m just not understanding Justice Scalia’s question, but for example, there are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination.” Her point was irrefutable; no one is forcing those clergy members to act against their belief system.
When John Bursch, the lawyer opposed to marriage equality, took the stand, he argued that the point of marriage is to make sure that children are raised by their biological parents. In rapid succession, the women dismantled that line of reasoning. First, Sotomayor noted that marriage doesn’t keep fathers—or mothers (she made a point of being gender-neutral)—from abandoning their families. Then Kagan quizzed him about whether states with a “procreation-centered view of marriage” would be permitted to ask people if they plan to bear children before granting marriage licenses. He had to admit that doing so would be unconstitutional.
To put the nail in the coffin of the marriage-is-solely-for-procreation argument, Ginsburg asked, “Suppose a couple, a 70-year-old couple comes in and they want to get married?” Hilariously, the lawyer felt like he had to spring to the defense of male virility: “Well, a 70-year-old man, obviously, is still capable of having children and you’d like to keep that within the marriage.” Jon Stewart had a field day with this exchange, stating that the lawyer “would’ve been better off answering ‘homina-homina-homina,’ spinning the bowtie, throwing a smoke bomb and getting the fuck out of the room.”
In his concluding remarks, Bursch asked the court to believe that the people who voted in favor of marriage bans were expressing no animus against gay people. He might want to have a word with the man who disrupted the proceedings by repeatedly shouting,”Homosexuality is an abomination!”
When the ruling comes down—by the end of June—we know that Scalia and Thomas will vote against marriage equality, and Alito is unlikely to switch sides. It’s worth noting that this time around Scalia made no references to bestiality and managed to refrain from saying anything particularly ugly about lesbians and gay men, something he has felt quite free to do in the past. That in itself is a minor victory.
It’s absolutely clear that the women justices will vote on the side of equality, as will Breyer. Kennedy is almost certainly going to uphold the values that led him to vote in favor of federal recognition of the marriages of same-sex couples in the Windsor case. There is even a chance that Roberts could surprise everyone and make this a 6-3 win.
Victory will be sweet. Although more battles will need to be fought to put an end to discrimination, the country will be better off. Lesbians and gay men will continue to marry, and as a result of this ruling, our marriages will no longer be fraught with ambiguity. We will cross state lines as married couples, tend our next of kin in sickness and in health, and when death us do part, we will not leave our families in legal limbo.
After all the years—in our lifetimes and the lives that have come before—love will prevail.
Audrey Bilger (@AudreyBilger) is a professor of literature and faculty director of the Center for Writing and Public Discourse at Claremont McKenna College. She is the author of Laughing Feminism and co-editor, with Ms. magazine senior editor Michele Kort, of Here Come the Brides! Reflections on Lesbian Love and Marriage, a 2013 Lambda Literary Awards finalist.