Today was the big day for family law. The Supreme Court heard arguments in the case of Obergefell v Hodges that rank up there with Loving v Virginia. Today, the Supreme Court tackled the public portion of the same-sex marriage argument.
There will likely be four votes in favor and four against. In favor of accepting same-sex marriage will likely be Justices Ginsburg, Breyer, Sotomayor and Kagan. Opposed will likely be Scalia, Thomas, Alito and Roberts. Uncertain is that most heralded Justice of tie breakers, Justice Kennedy.
Today, while acknowledging the damage that would be done to long standing constitutional virtues of equal protection and full faith and credit should same-sex marriage be denied, Justice Kennedy posited an interesting assertion: “This definition (of marriage as between one man and one woman) has been with us for millennia.”
Actually though, marriage throughout the millennia has taken many different forms:
Solomon had 700 official wives and 300 concubines. What would Justice Scalia make of that? I
In Greece, one citizen put it well, “We keep courtesans for pleasure, concubines for the daily care of our body, and wives for the bearing of legitimate children and to keep watch over our house.”
As was written by a Countess in the 13th Century, “love cannot exert its powers between two people who are married to each other.” Love was confined to adulterous relationships.
Apparently, marriages weren’t even performed in churches until 1583, almost 100 years after Columbus set foot on our shores.
Not until the Enlightenment did the notion that people in love should marry started to gain traction. Of course, the traditional powers warned that such would be the end of marriage as civilization knew it by undermining the male authority that glued households together.
Even in this country, polygamy was practiced as late as 1890. According to some TV shows, it goes on still.
And to this day, many cultures have widely differing views on what is a marriage.
Sometimes Justices will posit questions specifically designed to respond to a concern privately expressed by opposing Justices. As the only family law attorney in the Southeast who has the great priviledge of arguing before the United States Supreme Court, I know. I’ve seen it happen.
This could be one such occasion. Justice Kennedy could well be prompting an answer to address unvoiced concerns of other Justices. “Just what is traditional marriage anyway?”
If that is the case, this blog post has done its part to try to provide some historical background to the jurists. May they be enlightened that traditional marriage was far more no holds barred than Ozzie and Harriet experienced. Contrary to the Justice’s assertion, the Cleavers would have stood mouth agape to witness what passed for traditional marriage throughout the millennia.
May the Supreme Court of the United States find the wisdom to open family law, get government out of the way of the people and let consenting adults marry.
May it be so.