Anthony Kennedy and the “Millennia” of Marriage

May 8, 2015

After last week's oral arguments before the Supreme Court, those who seek a ruling that the Constitution of the United States requires a redefinition of marriage to include same-sex couples should be wary of over-confidence.

As usual, the eyes and ears of Court observers were focused on Justice Anthony Kennedy. He is often the "swing vote" between the Court's liberal bloc (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and the more consistent conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Last week's arguments gave every indication that Kennedy will cast the deciding vote again.

Some advocates of redefining marriage see victory in the current case -- an appeal of a decision in which the U.S. Court of Appeals for the Sixth Circuit upheld one-man, one-woman marriage laws in Michigan, Ohio, Kentucky, and Tennessee -- as a foregone conclusion. They base their confidence on opinions Justice Kennedy has written in earlier cases which upheld the pro-homosexual cause -- most notably, the 2013 ruling which struck down the federal definition of marriage in the Defense of Marriage Act (DOMA).

It is dangerous to try to predict the outcome of a case based on oral arguments. By their very nature, they lead the Justices to attack, or at least probe and test, the weak points of both side's arguments. However, Justice Kennedy's questioning in the current case (or cases, consolidated under the name of one of them, Obergefell v. Hodges) at least showed an understanding of some issues which advocates of redefinition tend to gloss over or deny.

An ancient definition

For example, the very first question that Kennedy raised for Mary Bonauto, attorney for the petitioners seeking licenses for same-sex civil marriages, reflected two key elements of the way conservatives believe the issue should be framed. Liberals argue that the issue is "access" to the institution of marriage; conservatives say the issue is the fundamental definition of marriage. Liberals focus on the recent adoption of laws and state constitutional amendments to "ban same-sex marriage," while conservatives point out those measures merely preserve the longstanding definition of marriage.

Kennedy took the conservative side of both points when he said, "...[T]he word that keeps coming back to me in this case ... is 'millennia.' ... This definition has been with us for millennia. And ... it's very difficult for the Court to say, oh, well.... we know better."

Bonauto seemed to want to avoid this topic of the antiquity and universality of marriage as a male-female union, arguing, "The States create the definition of civil marriage and certainly are accountable for those definitions and any exclusions which follow." However, Kennedy returned to the larger perspective, noting, "If you read ... about the Kalahari people ... or ancient peoples, they didn't have a government like this. They made it [marriage] themselves and it was man and woman."

No "fundamental right"

Advocates for marriage redefinition use the tactic of throwing several constitutional arguments at the wall to see which will stick. One of these is the argument that the marriage laws deny to homosexuals the "fundamental right to marry," which the Supreme Court has declared in previous cases that individuals have as a "liberty" interest protected by the Due Process clause of the 14th Amendment. In questioning U.S. Solicitor General Donald Verrilli, who was also given time to argue in favor of marriage redefinition on behalf of the Obama Administration, Justice Kennedy pointed out (and Verrilli appeared to concede) the Achilles' heel of the "fundamental rights" argument in this context.

The Supreme Court laid down criteria for identifying new "fundamental rights" in a 1997 case called Washington v. Glucksberg, in which the Court rejected the assertion that assisted suicide is a "fundamental right." First, there must be a "careful description" of the asserted fundamental liberty interest. In the suicide case, they said the right being asserted was much narrower than a so-called "right to die." Second, the interest, so described, must be "objectively, deeply rooted in this Nation's history, legal traditions, and practices."

In the marriage context, advocates for redefinition argue that the "fundamental right to marry" implicitly includes the right to marry the person of your choice, and therefore they are not seeking a new right to same-sex "marriage." However, Kennedy asked Verrilli, "I'm interested in your comments on Glucksberg, which says that we should have to define a fundamental right in its narrowest terms."

It is plain that a "careful description" of the "right" currently being asserted is "the right to marry a person of the same sex." It is equally obvious that no such right is "deeply rooted in this Nation's history," and Verrilli made no effort to claim that it was, conceding to Kennedy, "We haven't made the fundamental rights argument under Glucksberg."

"Why should the State have to yield?"

Although the central issue before the Court is whether states have a constitutional obligation to issue marriage licenses to same-sex couples, there were separate arguments on a related question which had been litigated in some states -- whether a state which licenses only opposite-sex marriage must nevertheless recognize same-sex unions that were legally contracted elsewhere. One very real possibility, ignored by most of the media, is that the Supreme Court could rule that states do not have to issue licenses to same-sex couples, but do have to recognize such unions from other states.

However, Justice Kennedy challenged Douglas Hallward-Driemeier, the attorney arguing for such recognition, by pointing out the threat to the State's public policy choice. As Kennedy noted, the recognition question presumes "that the State does have a sufficient interest so that you need not allow the marriages . . . in that State. . . . But then suddenly, if you're [from] out of State it's different. Why should the State have to yield" to another State's policy?

A "biological mom and dad"

Not all of Justice Kennedy's questioning was sympathetic to conservatives, of course. When John J. Bursch of Michigan was arguing in defense of the four states, Justice Kennedy seemed to have some trouble understanding, or engaging with, the actual argument Bursch was making.

For example, Bursch had argued that marriage "developed to serve purposes that, by their nature, arise from biology" -- meaning the unique potential for natural procreation that is only present in opposite-sex couples, never in same-sex ones. He warned, " ... [W]hen you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences."  Later, Bursch suggested that a key purpose of marriage is "to inextricably bond kids to their biological moms and dads."

Justice Kennedy complained, " ... [Y]ou had some premise that only opposite-sex couples can have a bonding with the child. That's ... just a wrong premise." However, Bursch was not saying that only opposite-sex couples can bond with a child, but that the state has a unique interest in encouraging the man and woman who are biologically responsible for the child's existence to do so.

Justice Kennedy seemed to be missing Bursch's point that there is particular value in connecting children to their biological parents, and in having a parent of both sexes. The more liberal justices just bluntly disagreed. After Bursch said, "I mean, I think we can all agree that, in general, that we want kids to stay bound to their biological mother and father whenever possible," Justice Sonia Sotomayor immediately responded, "No, I -- I think they should be bound to their parent ..."

Do unmarried people lack "dignity?"

Another disturbing aspect of Justice Kennedy's questioning involved the amorphous concept of "dignity." Bursch argued, " ... [What] they [the Plaintiffs] are asking you to do is to take an institution, which was never intended to be dignitary [sic] bestowing, and make it dignitary bestowing. That's their whole argument."

Kennedy seemed puzzled. "I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage... and these parties say they want to have that -- that same ennoblement."

Bursch, however, held his ground, returning to a hypothetical "world where marriage doesn't exist and the State is trying to figure out, 'How do we link these kids with their biological moms and dads when possible' ... [D]ignity may have grown up around marriage as a cultural thing, but the State has no interest in bestowing or taking away dignity from anyone ..."

Bursch also pointed out a key problem with the assumption that marriage "bestows dignity" -- namely, that it implies that people who are unmarried lack dignity. " ... [I]f you turn it into a dignity-bestowing institution, then other family structures and children who are excluded from their definition would suffer a dignitary harm."

For example, if an unmarried woman and her unmarried adult daughter are jointly raising the younger woman's minor child (not an uncommon family structure), does the fact that the consanguinity provisions of the law prevent mother and daughter from marrying deprive their household of "dignity?" It's hard to imagine the Supreme Court would say such a thing.


Justice Kennedy seems to realize that marriage is an ancient institution, and that the male-female union has always been fundamental to its definition, not a mere incidental regulation imposed upon it. He seems to acknowledge it would be arrogant for the Court to overturn such an ancient definition, and to recognize that same-sex "marriage" is no "fundamental right." He also seems concerned (as he was in the DOMA case) for the power of states to determine their own marriage policy.

Let us hope he can bring himself to acknowledge the unique value of bonding children to parents of both sexes with whom they have a biological (not just legal) relationship, and that he recognizes such a child-centered interest (not an adult-centered interest in "dignity") is what justifies the institution of civil marriage in the first place.