Whether the Supreme Court Should Require States to Allow Same Sex Marriage

“The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society.” This was the opening of Ms. Mary Bonauto in arguing why the Court should permit same-sex marriage. I couldn’t agree more than that they are the foundation of family life in our society.

In the beginning of the arguments there was discussion about whether other countries discriminated against gays and whether that was the basis for not allowing gay marriage. Justice Alito stated that in Ancient Greece homosexuality was welcomed and yet gay marriage was not allowed and then questioned whether that was discrimination.

Justice Breyer inquired as to why 9 people who are “outside the ballot box” (meaning not the voters of the states) should force the States to allow gay marriage when this has been the law everywhere for thousands of years among people who were not discriminating against gay people, as in Justice Alito referring to Ancient Greece. He questioned why they should not just wait and see what each individual state will do.

Ms. Bonauto responded to the wait and see argument by stating that in the Loving v. Virginia case which was about interracial marriage, the state of Virginia asked for the Court to wait and see. She further stated that 80% of the American public was on board with Virginia, yet the Court ruled that the states must allow interracial marriage. She further stated “Wait and see by itself has never been considered a legitimate justification, a freestanding justification under the Fourteenth Amendment .”

In closing Ms. Bonauto stated, “It’s not about the Court versus the States. It’s about the individual making the choice to marry and with whom to marry, or the government.”

When General Verrilli spoke he stated, “Excluding gay and lesbian couples from marriage demeans the dignity of these couples. It demeans their children, and it denies the ¬¬ both the couples and their children the stabilizing structure that marriage affords.”

Justice Roberts questioned the comparison to State v. Lawrence in which the Court stated that the State cannot intrude on the personal relationship and the Court being asked now to approve the relationship. In response, General Verilli stated “this is about equal participation, participation on equal terms in a State¬conferred ¬¬ a State¬conferred status, a State institution.” He further states, “But ¬¬ but even beyond that, I think the more fundamental point, and the point I’m trying to drive at here, is that you have hundreds of thousands of children raised in same¬sex households now. And what Respondents’ position and Respondents’ caution argument leads you to is the conclusion that those hundreds of thousands of children don’t get the stabilizing structure and the many benefits of marriage.”
In closing General Verrilli stated, “Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.”

Arguing for the State was Mr. Bursch who opened by stating, “And we’re asking you to affirm every individual’s fundamental liberty interest in deciding the meaning of marriage.” Justice Sotomayor started in immediate and stated that even if they allow gay marriage they would not be taking away anyone’s decision on whether to marry or not.

Justice Breyer stated, “…marriage is fundamental…But there is one group of people whome they won’t open marriage to. So they have no possibility to participate in that fundamental liberty.” Mr. Bursch’s responded by staing, “It developed to serve purposes that, by their nature, arise from biology.” In fact it would seem that Mr. Bursch’s ENTIRE argument is that marriage is about ENSURING a bond between the biological parents of a child and that by allowing same sex marriage, marriage will no longer be about the children but about adults. He even goes on to state that if marriage were about adults then they would be free to leave whenever they no longer felt the emotional need to be together.

Justice Kagan asked whether recognizing same sex marriage would “impinge upon the State interest, will harm the State interest in regulating procreating through marriage?” Justice Ginsburg questioned how allowing same sex marriage would take away from heterosexual couples. Mr. Bursch’s response was that “when you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences.”

When Mr. Bursch was questioned about adopted children being adopted by same sex couples and those same sex couples not being allowed to marry all Mr. Bursch could state is that the state is all for same sex couples adopting children, but they are not for allowing same sex couples to marry.

Ms. Bonauto closed by stating, “The State’s entire premise here 
is that if same­sex couples marry, then different­sex 
couples won’t and have their children in a marriage. 
Those two could not be further apart. People make their 
own decisions. It is beyond attenuated.”


In my take on this argument, I fail to see how allowing same-sex couples to marry would destroy heterosexual couples marriages anymore than anything else today does. We have a high divorce rate, whether couples have children or not. The idea that somehow limiting marriage to heterosexual couples would help to keep families together just amazes me.