On Tuesday, the U.S. Supreme Court heard the opening arguments in Obergefell v. Hodges, a case where the outcome will likely decide once and for all whether or not gay marriage becomes the law of the land. Referred to by many as the “Roe v. Wade of same-sex marriage,” the first day of the case demonstrated that the justices have not yet decided where they will land on the issue.
“Would there be any ground to deny a group marriage license?” asked Justice Samuel Alito, giving voice to the concerns of many conservatives who believe gay marriage is a slippery slope to polygamy.
Chief Justice John Roberts wanted to understand how the Supreme Court could be asked to change the definition of a word. “Every definition that I looked up prior to about a dozen years ago defined marriage as a unity between a man and a woman as husband and wife,” he said. “Obviously, if you succeed, that core definition will no longer be operable. You’re not seeking to join the institution, you’re seeking to change what the institution is.”
And then there was Justice Anthony Kennedy, who many legal experts believe could act as the crucial swing vote. He, too, questioned how the Supreme Court could turn its back on thousands of years of tradition. “This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well. We know better.'”
But if the court rules the way most legal experts expect them to, that’s exactly what they’ll have to do. Their role here – as so clearly demonstrated by the tone of the opening arguments – is less about reviewing case law and interpreting the Constitution and more about deciding what’s best for the country. And that’s exactly why the Supreme Court should not be ruling on this issue at all.
The fact that there are only 13 states left with bans on gay marriage paints a skewed picture of the country. The vast majority of the states where gays can marry have been forced into legalization by court rulings, not public consensus. And while polls have shown that the majority of Americans favor gay marriage, that has a lot to do with how the questions are asked. When pollsters use questions that don’t seek out a particular answer, the statistics are much more evenly distributed.
The question before the Supreme Court is, in its way, no less absurd than if the case were about whether or not a dog could be a cat. Or whether a TV could be a couch. Marriage, as it has been defined throughout history, means the union of a man and a woman. It is nonsensical to ask nine judges to change that definition.