What’s the marriage equality debate really about?

Proponents see it as a question of equality. There’s no reason, they say, not to let loving, same-sex couples wed.

Opponents frame the issue as a fight over whether the courts have the right to change their definition of marriage — one purportedly embraced for thousands of years.

Although a clear majority of Americans now support same-sex marriage, the longevity of discrimination appears to have some traction among Supreme Court justices considering the issue.

Even the liberal Justice Stephen Breyer seemed disturbed by the “millennia” issue in arguments before the court. The one-man, one-woman definition of marriage “has been the law everywhere for thousands of years,” Breyer suggested uneasily to lawyers arguing for marriage equality. And “suddenly you want nine people outside the ballot box” to change that.

Breyer seems to have forgotten that the nine people on the Supreme Court have changed many things about our society. Ignoring the ballot box and the desires of most Americans, they found that school segregation violated the constitutional rights of African-American children and struck it down.

Nine people decided that the laws limiting marriage to people of the same race violated our Constitution as well.

Marriage Equality at SCOTUS


But as for “traditional” marriage, Justice Anthony Kennedy asserted, “This definition has been with us for millennia. And it’s very difficult for the court to say ‘Oh well, we know better.’”

Actually, we do know better.

Beliefs hallowed by tradition have included the legitimacy of slavery, hatred of Jews, and male dominance of government and society. Here are some other pernicious beliefs with lengthy pedigrees: that whites are superior to people of color, that the upper classes are a better breed than everyone else, and that women have no separate legal existence or rights apart from their husbands.

In most societies, for most of recorded history, marriage was basically the institution through which a man possessed and controlled his wife — or wives — to ensure the suitable inheritance of his property and power. Does that matter in the 21st century?

In much of the world, including our own country until quite recently, the law also allowed men to rape their wives with legal impunity. Should the courts that first struck down this traditional “right” have been daunted by the fact that it had been that way since time immemorial?

Some of the bygone features of marriage were changed by voters, others by judges. In our constitutional system, judges have the power — and the duty — to recognize people’s rights. That’s true even when it’s unpopular, and even when a malign discrimination has a long history.

This means that the Supreme Court must address the one fundamental question at issue: Is there any good reason why people of the same gender shouldn’t be allowed to marry each other?

In the end, the case against same-sex marriage rests on some people’s belief, no longer shared by most Americans, that God is against it. Those who believe this have no right to impose their view on society.

Whether it’s religious or secular, recent or ancient, naked bias can’t justify denying anyone the right to the equal protection of the law guaranteed by our Constitution. The Supreme Court should rule accordingly.

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Mitchell Zimmerman

Mitchell Zimmerman is an attorney who lives in Northern California. He supplements his work as a Silicon Valley intellectual property lawyer with pro bono work on behalf of the underrepresented.
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