No one really believes that Tuesday’s oral argument in the gay-marriage case, Obergefell v. Hodges, is an occasion for the justices to make up their minds about how they’re going to vote. Rather, it’s an exercise in making certain points, not so much to their colleagues as to the public. According to reports from the first section of the questioning, the justices had some messages they want you to hear.
The first and most important came from Justice Anthony Kennedy, the swing vote and the man who has written the jurisprudence of gay rights for the past 20 years. Kennedy wanted to talk about time – specifically, whether enough time has passed for gay marriage to become a fundamental right. He began by musing on the idea that the definition of marriage has been stable for “millennia.”
Strictly speaking, this notion isn’t actually true, given the vicissitudes of polygamy not only in the ancient and medieval worlds but also in modern places as diverse as Utah and Saudi Arabia. That didn’t really matter to Kennedy, because what he wanted was to use the question of time as a springboard to compare gay marriage to civil rights.
Kennedy went on to say that the amount of time between Lawrence v. Texas, the 2003 decision he wrote recognizing a fundamental right to have sex with a partner of one’s choice, and the current case was roughly the same as the amount of time between Brown v. Board of Education (1954) and Loving v. Virginia (1967). The Loving decision is the aptly named case in which the court struck down a ban on interracial marriage.
The comparison is hugely significant. Kennedy was making the point that he believes gradualism is appropriate in the announcement of new fundamental rights. The strong implication was that, when the court announced the end of segregation, some of the public still wasn’t ready for interracial marriage. By analogy, when he created the constitutional right to gay sex, the country wasn’t ready for gay marriage. Now, Kennedy implied, 12 years on, the time is right.
The comparison between Loving and the current case should be music to the ears of gay-marriage supporters. Today, the Loving decision looks like an icon of equality. It seems extraordinarily unlikely that Kennedy would mention it unless he intended to write a decision that he hopes will possess comparable historical importance.
More fundamentally, comparing gay rights to civil rights brings home a very basic message. Kennedy was in effect saying that the gay-rights jurisprudence for which he’s responsible is destined to become part of the mainstream American constitutional order, whatever opponents may believe now. Whether that turns out to be correct or not (my money is on it), it certainly telegraphs that Kennedy considers himself on the right side of history.
Justice Antonin Scalia unsurprisingly, took a different tack – but his line of questioning was also telling. In the past, Scalia has acerbically criticized Kennedy’s extension of autonomy and equality rights to gay people, arguing that the legislature should have the authority to resolve the controversial moral and political question of whether society may condemn homosexuality.
This time, Scalia focused on whether a minister who condemns same-sex marriage could be obligated to perform one. This approach reflects a concern heard widely among opponents of gay marriage, who have turned to religious liberty as a guarantor of their rights to continue to disagree. Significantly, it implies a fallback position – as though Scalia has already accepted Kennedy’s position as a fait accompli.
As Scalia knows perfectly well, the First Amendment guarantees the free exercise of religion. Consequently, it’s unimaginable from a constitutional perspective that any priest, minister, rabbi or imam would ever be compelled to perform a gay marriage against his or her conscience. It’s hard to think of a more fundamental example of the free exercise of religion.
Nevertheless, Scalia wanted to explore possible arguments in the other direction. After all, he pointed out, many states authorize clergy to perform marriages. How, then, could such clergy refuse to perform certain marriages?
From a strictly technical standpoint, Scalia was actually pointing out a weird anomaly of state marriage law. In fact, it is bizarre that the state authorizes clergy to perform a civil function. It weren’t for the long-standing nature of the practice, the delegation of state power to clergy would seem like a violation of the establishment clause. What, after all, could be more clearly an establishment of official religion than letting clergy, but not other nongovernment actors, perform a government function?
But the real-world fact is that the tradition of clergy performing legal marriages won’t be changed in the U.S., at least not in our lifetimes. Any constitutional difficulties can be resolved by allowing secular functionaries to perform the same role, as some states do. As Justice Elena Kagan pointed out, many rabbis won’t perform weddings between Jews and non-Jews, and there’s never been any hint of a legal challenge to this practice.
The best interpretation of Scalia’s motivation, then, is that he was trying to reassure opponents of gay marriage that the rights of clergy remain secure. Although he may not see it this way, Scalia was actually helping supporters of gay marriage to gain acceptance of a new right, but he will certainly oppose it in a dissent.
Perhaps the quirkiest comment/question in the first part of the oral argument came from Justice Samuel Alito, who noted that Plato spoke positively about homosexual love while simultaneously treating marriage as a practice restricted to a man and a woman. The observation has a particular intellectual history, having been made occasionally by students of Princeton University professor Robert George who argue that natural law, not just revealed religion, restricts marriage to one man and one woman. (It may not be a coincidence that Alito went to Princeton, where he belonged to a conservative student group.)
Presumably Alito’s goal was to suggest that one could oppose gay marriage without being a homophobe. One doubts whether Plato’s praise of love between men would be an inspiring or relevant source for most Americans who oppose gay marriage on religious grounds. But at least Alito was trying to find some respectful ground for continuing to oppose gay marriage even after the court establishes the right. By all means, let’s have more Plato in oral argument!
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently “Cool War: The Future of Global Competition.”