Justice Anthony Kennedy


As we relayed yesterday, Ryan Anderson is upbeat about the opening day of the Supreme Court hearings on whether the Constitution protects homosexual people to the extent that they should be able to marry. Here’s a bit more on that from his report at Public Discourse:

Tuesday’s oral arguments at the Supreme Court were excellent. There were so many good points made about what marriage is and why redefining marriage would cause harms.

This serious consideration of the harms of marriage redefinition stands in stark contrast to outrageous lower court rulings that had declared no rational basis to state marriage laws defining marriage as it always had been in America: a union of husband and wife.

Most importantly, it was clear that the nine Supreme Court justices do not have any greater insight on ideal marriage policy than do ordinary American citizens. The Constitution itself is silent about it. So the justices should uphold the authority of citizens and their elected representatives to make marriage policy in the states.

Here are some of the best portions of Tuesday’s arguments.

What Is Marriage?

Justice Anthony Kennedy pointed out that thinking marriage is the union of a man and a woman “has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.”

Chief Justice John Roberts noted that “Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife.” So he pointed out: “you’re not seeking to join the institution, you’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.”

How much experience do we have with redefined marriage? Twice Justice Scalia pointed out that there wasn’t “any society, prior to the Netherlands in 2001, that permitted same-sex marriage.” And Scalia ridiculed the idea that the plaintiffs were “asking us to decide it for this society when no other society until 2001 ever had it.”

Justice Kennedy seemed reluctant to judicially redefine marriage as well. Redefining marriage to include same-sex relationships has, Kennedy pointed out, only been around for “10 years is—I don’t even know how to count the decimals when we talk about millennia.”

Even Justice Stephen Breyer got in on the act, noting that marriage understood as the union of a man and a woman “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change … what marriage is.”

He concluded: “Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?”

Read more of his article at: Supreme Court Debates Meaning of Marriage and Consequences of Judicial Redefinition

Carolyn Moynihan

Carolyn Moynihan is the former deputy editor of MercatorNet