Scott Lemieux of LGM writes in The Guardian how weak the opponents of marriage equality were during oral arguments yesterday at the Supreme Court.
It would be premature to declare that the US supreme court will guarantee a right to same-sex marriage in all 50 states, but that’s where the smart money is: [Tuesday’s] oral argument allows supporters of marriage equality to remain optimistic that nationwide legalization is in the not-so-distant future.
The arguments made by John J Bursch on behalf of the discriminating states were no better than the ones sympathetic justices made on their behalf. Bursch began by arguing that every individual has a “fundamental liberty interest in deciding the meaning of marriage” that would be violated by finding a constitutional right to same-sex marriage. As Justice Sotomayor explained, the argument is bizarre: individuals would retain the ability to define marriage as they see fit even if states did not discriminate against same-sex couples. At best, the argument seems to be that the “rights” of states to discriminate should trump the rights of individuals to not be discriminated against, which is no more attractive a notion than it was when it was used to justify racial discrimination in the 19th and 20th centuries.
And yet, it made sense for Bursch to open with inept, disproven democratic theory, because his other arguments were worse. His attempts to argue that extending marriage rights to same-sex couples would harm child-rearing and heterosexual marriage were so feeble that Justice Scalia intervened at one point to suggest that Bursch didn’t actually have to answer the question.
As anyone who has read the court’s opinion eviscerating the Voting Rights Act knows, however, that the arguments for the constitutionality of bans on same-sex marriage are terrible doesn’t mean that the court won’t embrace them. So all court-watchers have to look to the swing vote, Anthony Kennedy, for clues.
Kennedy was not particularly active during the oral argument and, in isolation, his questions reflected ambivalence, echoing both the traditionalist concerns of Roberts and suggesting that bans on same-sex marriage undermined the dignity of gays and lesbians.
However, one clue to Kennedy’s eventual vote can perhaps be found in his silence during the second part of oral argument, which focused on the question of whether states could be required to recognize same-sex marriage performed in other states even if their own bans were upheld. The most plausible explanation for Kennedy’s disinterest in the question is that he believes it will be moot because all of the state bans will fall.
When combined with Kennedy’s past support for LGBT rights and the near-certainty that the four Democratic nominees will vote to strike down the bans, this suggests that opponents of marriage equality are right to be desperate. The weakness of their arguments suggest that the Supreme Court’s recognition of the same-sex marriage rights is long overdue.
I’m sticking with my prediction of 5-4 in favor of marriage equality, and you can count on fresh outrage and fundraising from the haters. They’ll find something else to blame on The Gay.