by Rebecca Glenberg, Legal Director
DOMA ImagePeople camped out in front of the Supreme Court for days to get a seat for yesterday’s arguments on marriage equality—and who could blame them?  It was a historic day, as Justices heard from lawyers on each side one more time before retreating to their chambers to decide – finally – whether the United States Constitution allows states to exclude same-sex couples from the rights and obligations of marriage.
In a sense, however, yesterday’s arguments were no different from those that have occurred in federal courts around the country for the past two years:  Once again, the opponents of marriage equality flailed and sputtered as they desperately tried to articulate reasons for refusing to offer the same legal protections to gay couples and their children that other couples enjoy.  The Justices – or some of them – saw right through them.
As we have seen in previous court hearings, the states relied heavily on the argument that marriage has meant a man and a woman for thousands of years.  Justice Breyer explained why that argument is a non-starter:
[M]arriage, as the States administer it, is open to vast numbers of people who both have children, adopt children, don't have children, all over the place.  But there is one group of people whom they won't open marriage to.  So they have no possibility to participate in that fundamental liberty.  That is people of the same sex who wish to marry.  And so we ask, why?  And the answer we get is, well, people have always done it.  You know, you could have answered that one the same way we talk about racial segregation.
Opponents also continue to claim that allowing same-sex couples to marry would somehow “de-link” marriage from its function of providing a stable mechanism for the rearing of children, and leading to the decline of marriage as an institution.  Of course, they provided no basis – in evidence or in logic – for believing that this would happen.  Justice Sonia Sotomayor put it perfectly:
But the problem is that even under a rational basis standard, do we accept a feeling?  I mean, why . . .  with something as fundamental as marriage, why would that feeling, which doesn't make any logical sense, control our decision-making?
Similarly, the states’ lawyers were unable to explain how their position promotes the welfare of children, when it has the effect of preventing many couples from adopting children, or denying legal protections to those who do.  As Justice Kagan said:
If you think about . . . who are the potential adoptive parents, many of them are same-¬sex parents who can't have their own children, and truly want to experience exactly the kind of bond that you're talking about.  So how does it make those children better off by preventing that from happening?
Even with the best lawyers they could find, the states seeking to preserve their regimes of marriage inequality were unable to answer these basic questions.
We’ve heard all of this before.  But what really got me, what really burned me up, was the very first point that John Bursch, Special Assistant Attorney General from Michigan, made:
This case isn't about how to define marriage.  It's about who gets to decide that question.  Is it the people acting through the democratic process, or is it the Federal courts?  And we're asking you to affirm every individual's fundamental liberty interest in deciding the meaning of marriage.
Seriously, Michigan?  Are you kidding me, Tennessee?  Really, Ohio and Kentucky?  You want to deny same-sex couples the right to marry, and deny children the right to have a legal relationship with both their parents, and claim that by doing so you are protecting liberty?  No way. Let’s give the last word to Mary Bonauto, the civil rights veteran who argued on behalf of gay couples before the Court:
[I]n terms of the question of who decides, it's not about the Court versus the States.  It's about the individual making the choice to marry and with whom to marry, or the government.
Individual choice.  Now that is liberty.
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