Posted by:
steve benson
(
)
Date: May 01, 2015 03:43PM
http://www.gannett-cdn.com/-mm-/3362191de76b66a28a66e2419617e3f72c707bfe/c=0-27-3605-2738&r=x404&c=534x401/local/-/media/2015/04/30/Phoenix/Phoenix/635659989627962541-bensonCOLOR-wedding-cake-04-30-15-copy.jpg_____
"Let Them Eat Wedding Cake: Allowing Gay Couples to Marry Won't Tarnish the Sanctity of Marriage. Given Their History, I'm Confident the Majority of Supreme Court Justices Will Give a Similar View This June"
by Steve Benson,
"Arizona Republic," azcentral.com
30 April 2015
The "Washington Post" has billed it as the most interesting quote from the Supreme Court's oral arguments in the gay marriage case.
They're talking about what Justice Anthony Kennedy recently said during the final legal run-up to the Court rendering its decision.
What Kennedy says could be what goes, given that he is expected to play a pivotal swing-vote role in determining the High Court's ultimate ruling (expected in late June) on whether to legalize same-sex marriage across the national board. (Currently, 36 states, along with the District of Columbia, recognize the right of same-sex couples to marry). Court watchers further expect that if a majority of the justices rule in favor of giving same-sex marriage their constitutional stamp of approval, it's likely that Kennedy, as the senior member in the expected majority, would assign himself to write the opinion.
Kennedy's comments in oral arguments evidence his regard for the long, traditional and historical status afforded marriage as a union between a man and a woman:
"The word that keeps coming back to me is millennia, plus time . . . . This definition [of a two-person heterosexual marriage] has been with us for millennia. And it¹s very difficult for the court to say, 'Oh well, we know better.'" Noting that the country has only had 10 years of experience with gay marriage, he told Mary Bonauto, counsel for same-sex couples, 'If we're not going to wait, it's only fair to say we're not going to consult the social science, ' contracted independent reporter Lyle Denniston, writes that Kennedy also "colorfully" told Bonauto "he could not count the number of zeroes there were in a millennia," noting that that was how long opposite-sex marriage had been the only accepted version.
Despite Kennedy's concern about changing the definition of marriage from a union between a man and a woman, he has, in past court rulings, been a defender of expanding gay rights, For instance, in Tuesday's oral arguments, he noted how same-sex couples say, of course, that "(they) understand the sacredness and nobility of the marriage (and, excluding marriage's procreative aspect) want the other attributes of it in order to show that (they), too, have a dignity that can be fulfilled."
Since Kennedy has raised the dignity question let's ask: "Is marriage dignified, noble and sacred?" (Actually, that inquiry was answered about 30 minutes into the same proceedings when a protester momentarily interrupted the court proceedings by launching into a screed against gay marriage, shouting that its supporters would "burn in hell." While the demonstrator might not end up going through the gates of hell, the Supreme Court police quickly showed her the door.
In the ensuing arguments, Kennedy told John Bursh, a lawyer representing the anti-gay marriage side, that the institution of marriage has historically been "dignity bestowing," saying "that was the whole purpose of marriage. It bestows dignity on both man and woman in a tradition marriage. It¹s dignity-bestowing, and these [same-sex] parties say they want to have that same ennoblement."
(Red flag to the anti-gay litigants: As noted by Denniston, Kennedy made the same point two years ago in the Court's same-sex marriage Windsor ruling, where he argued for "the need of the federal government to show respect for the dignity of gays and lesbians when they are allowed to join in marriage").
Playing devil's advocate, if marriage is "sacred," then would the legalization of same-sex marriage defile the institution of marriage itself?
http://www.gannett-cdn.com/-mm-/bf1d42833eadea46fe0672b6997b6d7ed6bf6d07/c=31-0-1168-855&r=x383&c=540x380/local/-/media/2015/04/04/Phoenix/Phoenix/635637878767444686-bensoncartoon04052015.jpgPersonally, I don¹t think so. Think about it. If the High Court ruled tomorrow in favor of gay marriage, I can't see millions of Christian couples across the land sitting up in bed, looking at each other in horror and exclaiming in union, "Well, I guess that's it for of our sacredly straight marriage! The Supreme Court has forever soiled it with its sinful ruling. See you in divorce court!"
At this point, odds appear to favor the Supreme Court handing down a June ruling upholding the constitutionality of same-sex marriage. Former U.S. Solicitor General Theodore Olson, (who successfully argued for overturning California's Proposition 8 that banned gay marriage), thinks that the Court has already moved beyond "the point of no return":
"I do not believe that the United States Supreme Court could rule that all of those [state] laws prohibiting marriage are suddenly constitutional after all these individuals have gotten married and their rights have changed. To have that snatched away, it seems to me, would be inhuman; it would be cruel; and it would be inconsistent with what the Supreme Court has said about these issues in the cases that it has rendered."
Olson favors the approach that the U.S. Supreme Court has followed--namely, taking a specific case and using it as the vehicle to rule whether gay marriage deserves endorsement as a constitutional right. He believes that the alternative of waiting for courts in all 50 states to constitutionalize gay marriage "would not be good enough because it's not now. When will that happen? And how much misery and how much suffering do individuals in this country have to experience before that happens?"
With 36 states now having legalized same-sex marriage, Olson is pleasantly surprised, saying, "We never thought it would move this fast," Olson, who has argued over 60 cases covering a wide range of issues before the U.S. Supreme Court, acknowledges that his advocacy for gay marriage is "the legal accomplishment that I think will always mean the most to me."
_____
(For reader views on the subject, go here and click on the "Comment" button:
http://www.azcentral.com/story/opinion/op-ed/steve-benson/2015/04/30/let-them-eat-wedding-cake/26642667/)
Edited 7 time(s). Last edit at 05/02/2015 12:46AM by steve benson.