“You’re not seeking to join the institution,” Chief Justice John Roberts told an attorney arguing for same-gender marriage last week at the U.S. Supreme Court. “You’re seeking to change what the institution is.”
That’s how he looks at it.
To date, the conversation has been phrased as extending the legal rights associated with man-woman marital bonds to man-man or woman-woman couples.
Roberts, a conservative, said that’s not entirely accurate. To paraphrase, it’s not like adding a few more enemy nations to an existing declaration of war. It’s a whole new definition of war. (Not that war and marriage are similar, mind you.)
The chief justice was joined by other conservatives who believe states are stampeding toward revoking cultural norms in place for thousands of years. Justice Antonin Scalia pointed out that the first nation legally to recognize same-gender marriage was the Netherlands, a mere 14 years ago.
As recently as 1996, President Bill Clinton signed the Defense of Marriage Act, which had passed the House 342-67 and the Senate 85-14. When seeking his first term, President Barack Obama said he did not support gay marriage. More recently, Obama’s solicitor general refused to argue for the Defense of Marriage Act, which said federal programs would not recognize same-sex marriages and that states don’t have to recognize same-sex marriages performed legally in other states.
The act was ruled unconstitutional in 2013. President Obama has called his previous opposition a mistake, and last week the federal government argued, strongly, for same-sex wedlock.
The political and societal impetus has changed 180 degrees in less than 19 years. Polls say public opinion in Mississippi has followed this trend, even if state officials remain stridently opposed.
For now, Mississippi is on hold.
This state wasn’t one of the four (Michigan, Ohio, Kentucky and Tennessee) whose statutes were directly before the high court, but no matter.
U.S. District Judge Carlton Reeves overturned this state’s ban in November. His ruling was appealed to the Fifth U.S. Circuit in New Orleans. Judges there heard the Mississippi case, along with cases from Louisiana and Texas, in January, but are sitting on them. There’s no need to rule because what the Supreme Court decides will settle the question of state authority to refuse licenses or provide legal recognition of a marital relationship between any two adults.
The justice of the hour is Anthony Kennedy. As Fate would have it, he’s the man-in-the-middle.
Based on their past rulings and last week’s arguments, some justices will say licensing marriage is a state matter under the Constitution and/or a matter for state and federal lawmakers to decide after a longer period of contemplation.
Other members of the court will say the Constitution requires people (including couples) to be treated equally unless there’s an important reason not to do so. And that’s where the crux of the argument rests. Viewed cavalierly, why should government care? What public interest is being protected by refusing marital contracts based on gender?
Justice Kennedy, a Harvard man appointed by President Reagan in 1988, didn’t show his cards. He joined those who intimated the court was being asked to move too fast. “This (man-woman) definition has been with us for millennia,” he said, “and it’s very difficult for the world to say, ‘Oh, well, we know better.”
But in other comments he was searching for any rationale under which the public benefits from only sanctioning same-gender marriages.
Much, if not all, of the opposition to the tidal wave of redefined marriage comes from people of faith. But this is a secular nation, by law, and thus what churches (Kennedy is Catholic) ordain or refuse to ordain is not something the Supreme Court takes into consideration. Faiths have long had their own rules on marriage, divorce, sex and many other topics.
The law looks strictly at marriage as legal partnerships creating mutual rights and benefits, such as inheritance, pensions and such. For instance, in the absence of a written will, the estate of a person in Mississippi who has no relatives except a distant cousin would go to that cousin even if the deceased was in a gay relationship for 40 years. How could that be justice?
The Supremes vacation in summer, and will likely rule before heading to the beach. In all similar cases, a challenged state law has been weighed as to whether there’s a reason for treating people differently. It’s not likely a majority will find a reason on these faces.
A decision could be delayed until the court reconvenes in October, but that’s unlikely, too.
Look for June weddings in Mississippi to include gay couples. This change may have come about rapidly, but that, of itself, doesn’t mean it’s wrong.
Charlie Mitchell is a Mississippi journalist and assistant dean of the Meek School of Journalism and New Media. Write to him at cmitchell43@yahoo.com.
