On Tuesday, the Supreme Court heard oral arguments in Obergefell v. Hodges, which will go down in history as either the next Roe v. Wade or the next Dred Scott, depending on how it is decided and which side you are on–and it may surprise the advocates of same-sex marriage that there are in fact many decent and honorable people on the other side. To wit, two of the justices you would least expect have provided strong arguments as to why judicially imposed same-sex marriage would not be a good idea.Justices Kennedy and Ginsburg (Tim Sloan/AFP/Getty Images)
First, in the unrelated case of Williams-Yulee v. Florida Bar, the Court issued its opinion yesterday, from which Justice Kennedy dissented, excerpted below:
One advantage of judicial elections is the opportunity offered for the public to become more knowledgeable about their courts and their law. This might stimulate discourse over the requisite and highest ethical standards for the judiciary, including whether the people should elect a judge who personally solicits campaign funds. Yet now that teaching process is hindered by state censorship. By allowing the State’s speech restriction, the Court undermines the educational process that free speech in elections should facilitate.
It is not within our Nation’s First Amendment tradition to abridge speech simply because the government believes a question is too difficult or too profound for voters…The Court should not now presume citizens are unequipped for that task when it comes to judging for themselves who should judge them. If there is concern about principled, decent, and thoughtful discourse in election campaigns, the First Amendment provides the answer. That answer is more speech.
Modern communication technologies afford voters and candidates an unparalleled opportunity to engage in the campaign and election process. These technologies may encourage a discourse that is principled and informed. The Internet, in particular, has increased in a dramatic way the rapidity and pervasiveness with which ideas may spread.
The speech the Court now holds foreclosed might itself have been instructive in this regard, and it could have been open to the electorate’s scrutiny. Judicial elections, no less than other elections, presuppose faith in democracy. Judicial elections are no exception to the premise that elections can teach.
According to Wikipedia, prior to the federal courts getting involved in the aftermath of the Windsor decision, there were something like 28 states with constitutional amendments recognizing marriage as the union of one man and one woman. By Justice Kennedy’s logic, it stands to reason that if we as a society are to adopt same-sex marriage, the best way to do it would be to change those constitutions through democratic processes. Justice Kennedy is right to say that, at their best, elections can lead to the real development of ideas and societal trends. The question is: does he really believe it? Justice Kennedy will almost certainly cast the pivotal vote in Obergefell, so time will tell.
On the other hand, Justice Ginsburg unintentionally provided a strong argument why we should be wary of same-sex marriage. Liberals cheered when the “Notorious RBG” spoke about the recent cultural shifts that have transformed marriage into an “egalitarian” institution during arguments on Tuesday:
[Same-sex couples] wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.
There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.
It is unquestionably a good thing that women are no longer treated as chattels by their husbands and by the law. However, as same-sex unions become commonplace, a new form of commoditization of women has taken its place. As an example, in the devastation of the Nepal earthquake, the Israeli government sent a rescue mission, of sorts, to airlift the babies of Indian surrogates to be united with their gay fathers, while leaving the mothers behind to await diplomatic negotiations over their uncertain fate. For these women, there is nothing “egalitarian” about the new arrangements that are made necessary by the recognition of same-sex unions.
There are serious and difficult questions about the rights of children in same-sex households and the ethics of surrogacy, genetic screening, and a whole host of other issues that we have not even begun to explore. The wise and prudent course for the Supreme Court would be to allow democratic processes to form a deliberate consensus on these questions and countless others we have not even thought of yet. However, if you were going to wager on the outcome of Obergefell v. Hodges, the safe money would be on Kennedy and Ginsburg both casting their votes–against their own counsel–to overturn the popularly-enacted constitutions of 28 states and to usher in the brave new world of wombs-for-hire.
We are told that same-sex marriage is the “right side of history,” but history has a funny way of defying our expectations. Far from ending the debate, it seems certain that just as with Roe v. Wade, such a decision would only deepen the division between the opposing sides on this issue. Far from being settled law, same-sex marriage is an audacious and far-reaching social experiment which has never been tried in all of recorded history. Far from assuring their legacy, the justices of the Supreme Court should beware of deciding which side they will be on, for they too will be judged by future generations as yet unborn, and it is not we, but our posterity who will decide which is the “right side of history.”