Conservative Supreme Court Justice Antonin Scalia is again raising conservative media talking points in court, advancing the debunked idea that the definition of marriage has remained unchanged for a “millennia.”
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that will determine whether state bans on same-sex marriage are unconstitutional. During arguments, the conservative justices, including Scalia, expressed concern about “redefining” the institution of marriage to include gay couples. In one exchange with Mary Bonauto, the lawyer representing the same-sex plaintiffs, Scalia wondered if it was appropriate for the court to “decide it for this society” since marriage has applied only to heterosexual couples “for millennia.”
The idea that the definition of marriage has had a fixed tradition or definition “for millennia” is untrue, although right-wing media have pushed that notion in varying forms for years -- and Scalia's propensity for embracing right-wing talking points is well-known. In 2012, he repeated the idea that if the Affordable Care Act was upheld, the federal government might be allowed to force Americans to buy broccoli -- an argument borrowed from Rush Limbaugh's talk show. Earlier this year, Scalia claimed that if the court struck down the availability of health care subsidies, Congress would move quickly to fix the problem -- apparently convinced by right-wing media's false claims that Senate Republicans had a viable back-up plan if the court hobbled the Affordable Care Act. When the Supreme Court struck down Arizona's notorious anti-immigrant racial profiling law in 2012, Scalia dispensed with legal arguments to instead attack the unrelated deferred action program for DREAMers and scaremonger that the “state's citizens feel themselves under siege by large numbers of illegal immigrants.” Professor Jeffrey Rosen of George Washington University said Scalia's commentary in that case “sound[ed] more like a conservative blogger or Fox News pundit than a justice.”
As CNN legal analyst and New Yorker columnist Jeffrey Toobin recently wrote, Scalia's line of questioning during the marriage equality oral arguments was more of the same, and “further established his reputation as the Fox News Justice, who appears to use conservative talking points to prepare for oral arguments.”
For its part, Fox News has indeed pushed the argument that the “traditional” definition of marriage has remained static in the past and should therefore stay the same. On the March 30, 2013 of Journal Editorial Report, Fox's weekend public affairs program, Wall Street Journal editorial board member Joe Rago argued that it “would be an especially radical step to say that the marriage arrangements that have prevailed for millennia are unconstitutional and a result of invidious bigotry.” Just this week, on the April 26 edition of America's News HQ, anti-gay marriage activist and conservative writer Ryan T. Anderson stated that “every great thinker throughout human history thought marriage was between a man and a woman, a husband and a wife, a mother and a father.”
Other right-wing media outlets have done the same. The Wall Street Journal argued in an April 27 editorial that the gay couples challenging the marriage bans were “asking the Court to declare” that “the beliefs that have prevailed across the West for most of human history amount to invidious bigotry.” National Review Online contributor David French made a similar argument in an April 27 post, claiming that “by grafting same-sex relationships into marriage, activists want their relationships to enjoy all the legal and cultural protections marriage has built up through millennia of human experience. To oppose 'marriage' is to oppose civilization.”
But as Scalia's fellow justice, Ruth Bader Ginsburg, pointed out during arguments, marriage has changed significantly in the past millennium and “marriage today is not what it was under the common law tradition, under the civil law tradition.” Take women for example, who now enjoy the benefits of more egalitarian unions -- a relatively recent development that has added value to the institution:
JUSTICE GINSBURG: But you wouldn't be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn't possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.
There was a change in the institution of marriage to make it egalitarian when it wasn't egalitarian. And same-sex unions wouldn't -- wouldn't fit into what marriage was once.
The norms and laws around marriage have in fact changed repeatedly -- the unconstitutionality of interracial marriage bans struck down by Loving v. Virginia being one of the most obvious examples -- and multiple cultural, religious, or state-sanctioned conceptions of marriage have been reevaluated by society and the law, just like the bans on same-sex couples are being reevaluated now. In striking down Wisconsin's same-sex marriage ban, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit pointed out that “If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause” (emphasis added):
The state's argument from tradition runs head on into Loving v. Virginia, since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial times and were found in northern as well as southern colonies and states. Tradition per se has no positive or negative significance. There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka's “In the Penal Colony” and Shirley Jackson's “The Lottery,” bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination -- regardless of the age of the tradition. Holmes thought it “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Criticism of homosexuality is far older. In Leviticus 18:22 we read that “thou shalt not lie with mankind, as with womankind: it is abomination.”