The best insight I’ve seen into what happened yesterday at the Supreme Court’s hearing about same-sex marriage comes from Slate’s terrific judicial correspondent, Dahlia Lithwick. She sums up the most important points in this video:
If you’d like to listen to the actual hearing, with the back-and-forth between the justices and the attorneys for each side, the audio is here. My friend Stuart Snyder observes:
As I listened to the arguments, I was struck by how the justices use the advocates as tools for arguing and debating with each other. Most of the lawyers were skilled, brilliant oral advocates, but they were not given much of a chance to answer one justice’s question before they were interrupted by another. If nothing else, it’s great theater.
I was annoyed by some of the justices’ questions, particularly about how marriage has meant the same thing for millenia (one man and one woman) and in every culture around the world — this from justices (Scalia and Alito) who have decried using any foreign law as precedent in their hallowed chambers. They ignore that what makes the United States unique, and why we broke away from the precedents of Great Britain, is that our nation is supposed to offer its citizens greater freedoms than any other on the planet.
The “millenia” argument also discounts the fact that for much of history, marriage globally was a legal decree that treated women as nothing more than property, a tradition that has been done away with in the civilized world as our society has changed. I always hate arguments that include “but this is the way it’s always been done” as justification for never updating our laws. If the US had followed that rationale, only white property owners would be allowed to vote, women wouldn’t work outside the home, blacks wouldn’t be considered full and free people — and we would all be subjects of Queen Elizabeth II.
I have written a large number of pieces on why gay marriage should be legal everywhere, complete with answers for pretty much every lame argument put forth by the opponents. Maybe I should have submitted them as amicus curiae to the Supreme Court.