National Review Online is calling on the Supreme Court to uphold states' rights to ban same-sex marriage because, in its view, recognizing marriage equality would redefine the institution to favor lesser “emotional unions” and adopted children over married procreation.
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that could finally allow same-sex couples to marry in every state or, at minimum, require states that ban same-sex marriage to recognize the legality of same-sex marriages performed legally elsewhere. During arguments, Mary Bonauto, the lawyer representing the same-sex couples challenging state marriage bans, asserted that such bans “contravene the basic constitutional commitment to equal dignity” and that “the abiding purpose of the 14th Amendment is to preclude relegating classes of persons to second-tier status.”
Several justices were receptive to Bonauto's argument, including conservative Justice Anthony Kennedy, who is widely expected to cast the deciding vote in the case.
But NRO is less convinced. In an April 28 editorial, the editors called on the justices to “refrain from taking [the] reckless step” of recognizing that the fundamental right to marry should be extended to gay couples. The editorial also rejected the idea that gay couples who can't get married are routinely denied the same dignity that “traditional” married couples enjoy, and argued that the “older view” of marriage -- which prioritizes “the type of sexual behavior that often gives rise to children” -- is “rationally superior to the newer one”:
An older view of marriage has steadily been losing ground to a newer one, and that process began long before the debate over same-sex couples. On the older understanding, society and, to a lesser extent, the government needed to shape sexual behavior -- specifically, the type of sexual behavior that often gives rise to children -- to promote the well-being of those children. On the newer understanding, marriage is primarily an emotional union of adults with an incidental connection to procreation and children.
We think the older view is not only unbigoted, but rationally superior to the newer one. Supporters of the older view have often said that it offers a sure ground for resisting polygamy while the newer one does not. But perhaps the more telling point is that the newer view does not offer any strong rationale for having a social institution of marriage in the first place, let alone a government-backed one.
The editorial's argument is almost identical to the position of Michigan Solicitor General John Bursch, who defended his state's ban on same-sex marriage by arguing that the state had an overwhelming interest in promoting procreation within the bounds of opposite-sex marriage. According to Bursch, allowing same-sex marriage would constitute a “new definition” of marriage focused on “emotional commitment” rather than biological procreation -- an outcome that Bursch claimed could “delink” parents from their children and cause more children to be born “out-of-wedlock.”
Bursch was unable to explain what his restrictive definition meant for the many married American couples who are unable to procreate, or for those who choose to adopt children, as Chief Justice John Roberts has done.
Adopting Bursch's argument wholesale might not be a winning strategy for NRO if the goal is to convince the court to avoid “redefining” the institution of marriage. As both Justices Elena Kagan and Sonia Sotomayor pointed out in oral arguments, states have more than just a procreative interest in marriage -- which is why marriage isn't currently limited to opposite-sex couples who want and are biologically capable of having children. And as Justice Stephen Breyer pointed out, stating the obvious, “Some non-gay couples have children, many, and some don't. And some gay people marry and have children, and some don't.” Justice Ruth Bader Ginsburg added that under Bursch's theory, older couples could also be discriminated against.
But perhaps the most significant rejection of the definition of marriage that NRO has chosen to defend was swing vote Justice Kennedy. Making it clear that it was in fact Bursch who was “redefining” marriage, Kennedy repeatedly and forcefully rejected the notion that there is nothing inherently special about marriage other than the fact that it often produces biological children, noting that “the whole purpose of marriage” is to bestow dignity on couples who want to participate in the institution, whether or not their ultimate goal is to have children:
JUSTICE KENNEDY: But that -- that assumes that same-sex couples could not have the more noble purpose, and that's the whole point. Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.
[...]
I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage.
MR. BURSCH: It's supposed to --
JUSTICE KENNEDY: It's dignity-bestowing, and these parties say they want to have that same ennoblement.