by Peter Sprigg
April 16, 2013
The mainstream media would have you believe that the decision to redefine marriage for the benefit of homosexual couples has already been made.
Time magazine ran a cover story under the title, “How Gay Marriage Won”—featuring cover photos of a male couple kissing or a female couple kissing—your choice. Pollsters claim that a majority of Americans now support legalizing same-sex “marriage,” and that among young people, that majority is overwhelming. Democratic senators (and a couple of Republicans) who previously opposed redefining marriage have begun falling like dominoes. Same-sex “marriage” is “inevitable,” we are told—it is only a matter of time.
Do not believe it.
In a country where 41 out of 50 states still define marriage as the union of a man and a woman, and voters in a majority, 30 have placed that definition in their state constitutions; it can only be wishful thinking for the advocates of marriage redefinition to claim that it is imminent or inevitable. I suspect that some in the mainstream media are hoping that their prophecy will be a self-fulfilling one.
It’s particularly ironic that the theme of the “inevitability” of same-sex “marriage” seemed to gain ground in the mainstream media the week of the Supreme Court’s oral arguments in the case challenging Proposition 8, the California state constitutional amendment defining marriage as the union of a man and a woman. Unlike the case challenging the Defense of Marriage Act, which presents somewhat narrower issues, the plaintiffs in the Prop 8 case, and their lead attorney Ted Olson, assert that the U.S. Constitution guarantees the right of same-sex couples to “marry.” If accepted, this argument would mean that marriage would be redefined to include same-sex couples not just in California, but in all fifty states. Such an outcome would be comparable to Roe v. Wade—the 1973 decision that forced legalized abortion on all fifty states.
However, the tone of the argument in the case (known as Hollingsworth v. Perry) actually did not seem to point in the direction of such a sweeping decision. The justices’ gave very little indication that they are prepared to redefine marriage for all fifty states.
Following are some quotes from the justices. We in the pro-family movement have sometimes made a slippery slope argument—if we redefine marriage to eliminate gender restrictions on one’s choice of marriage partner, it would be hard to maintain other restrictions—ones which prevent anyone from marrying a child, a close blood relative, or a person who is already married.
When conservatives raise this logical question, we are routinely vilified for “comparing” homosexuality to polygamy, incest, or pedophilia. Yet one of the justices raised the exact same point, putting it this way (this is slightly edited for clarity):
“If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people … that could get married, [with respect to] the incest laws, the mother and child [getting married], assuming that they are [both] the age [to marry]? I can accept that the State has probably an overbearing interest [in] protecting a child until they’re of age to marry, but what’s left?”
What’s interesting is that the justice who raised this was—Sonia Sotomayor, an Obama appointee.
We have also raised concern about the impact of marriage redefinition on the institution of marriage and on children.
One of the justices warned:
“[T]here’s substance to the point that [the] sociological information is new. We have five years of information to weigh against 2,000 years of history or more.”
That same justice later elaborated,
“The problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters; and you can play with that metaphor—‘there’s a wonderful destination,’ [or] ‘it is a cliff.’
When Ted Olson, the attorney for the homosexual couples in the case, claimed that there was an analogy between banning same-sex “marriages” and banning interracial marriages, the same justice cut him off and said,
“[T]hat’s not accurate.”
The justice who made all those remarks was—Anthony Kennedy, universally viewed as the swing vote between the conservative and liberal factions on the court.
In fact, in the 9th Circuit ruling on Prop 8 (which found the measure unconstitutional, but on narrow grounds that would apply only to California) it was almost comically obvious that the opinion was written to appeal to Justice Kennedy, based on the supposed precedent of his opinion in a 1996 case called Romer v. Evans.
Yet one justice referred to that 9th Circuit opinion and said,
“That’s a very odd rationale.”
The justice who said that was—Anthony Kennedy!
It is dangerous to make assumptions about the outcome of a case based on oral arguments—we learned that in the Obamacare case. But few observers now expect a Roe v. Wade of marriage.
That means this debate is probably not near an end. It is likely to continue for years to come.