Alito’s Absurd Question on Marriage Equality

Justice Samuel Alito asked a question during oral argument in the Prop 8 case on Tuesday that expressed one of the most commonly heard arguments used against marriage equality: It’s just too risky, how do we know it isn’t going to be very bad for society?

“Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.

“But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet? I mean we — we are not — we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?”

There’s so much that’s wrong with the premise of this question. Let me spell out all the problems:

1. Yes, traditional marriage is a good thing for society. But no one is proposing to do away with traditional marriage and there isn’t an argument that is the least bit coherent or plausible for why allowing gay people to marry would do anything to harm traditional marriage at all. It isn’t as if straight people are going to suddenly decide that they’re gay or that they shouldn’t get married just because gay people are now given the same opportunities.

2. If his argument is a serious one — if the Supreme Court can’t tell the future so it can’t know whether this will all turn out to be good or not — why doesn’t that same argument apply to the voters or elected officials? Seems to me that’s an argument against trying same-sex marriage at all, no matter how the decision is made. The voters are no more psychic than the Supreme Court justices.

3. This same argument could be used, indeed was used, against interracial marriage 50 years ago. Like same-sex marriage, interracial marriage had been forbidden for eons and had only recently begun to be allowed in some states. All sorts of terrible outcomes were alleged to result from allowing interracial marriage (none of them accurate, of course).

4. We don’t decide that it’s okay to violate someone’s rights just because we think it’s possible that it could lead to negative results, especially without a coherent argument for a causal link to those bad things. This same argument would invalidate pretty much every civil rights advance in history. Desegregation was new and untried and opponents made all kinds of arguments for why the result would be horrible, yet the Supreme Court ordered it anyway (and rightly so). Free speech can lead to a whole range of negative things, but we don’t void the First Amendment as a result except in very, very narrow circumstances where there is strong evidence of a direct link to something bad happening that cannot be tolerated.

As with nearly every argument against marriage equality, this is not a serious argument but a pretext, an argument that takes the place of the real position the person making it holds — which is that gay people simply don’t deserve equal rights because EWWWWWWWWWW.

44 comments on this post.
  1. Strewth:

    And that last ‘argument’ is especially funny because there’s nothing homosexual couples do that heterosexual couples do not do.

  2. danielkast:

    Even if it wasn’t a stupid question on its face, it’s not like we don’t have an answer…

    Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain, South Africa, and Sweden all allow same-sex couples to wed, without any apparent negative effects whatsoever.

  3. slc1:

    Re danielkast @ b#2

    Soon to be joined by Britain and France.

  4. Pierce R. Butler:

    All sorts of terrible outcomes were alleged to result from allowing interracial marriage (none of them accurate, of course).

    Didn’t they predict that allowing interracial marriage in any case would lead to it being accepted across the board, so that nobody would even notice the ongoing violation of God’s Laws?

    Isn’t that happening even as we type?

  5. sqlrob:

    Traditional marriage has been around for thousands of years

    Really? How many wives did Solomon have Alito? How recently was marriage done for love? How long has it been since you don’t need a dowry?

  6. sailor1031:

    WTF? America has come to this, where we are afraid to make a minor social change? Is it now a requirement that each judge be able to forecast the effects of each ruling? And colour me naive – I thought SC justices ruled on the law and the constitution not the desirability of the results of their decisions. Yeah I know……..

  7. dingojack:

    Uh Judge Alito – nobody really knew all the effects of the Internet either – maybe we should retroactively ban it. Just in case!
    @@

    Alito ain’t clutching his pearls, he’s clutching at straws.

    Dingo

  8. tynk:

    I am confused, I thought the SCOTUS was there to interpret the constitution and the laws of the US. Since when was determining what is good for society part of their jurisdiction? I am likely way off base, but isn’t that exactly what those accusing judges of legislating from the bench complain about?

  9. Brandon:

    That a Supreme Court Justice feels comfortable expressing an argument that amounts to “unspecified bad things might happen, this could pass a rational basis test” helps me further entrench my position that conservative Justices do not care at all about the legal or rational validity of their decisions.

  10. janiceclanfield:

    My wife and I have almost completely ruined all the straight marriages in Toronto. Really. It’s all part of the Homosexual Agenda, and boy are we gonna win!!!

    I question how a supreme court judge could possibly be so stupid.

    I am SO glad I live in Canada.

  11. slc1:

    Chief Justice Roberts took a shot at the Obama administration by opining that he found it unprecedented that it found DOMA unconstitutional but still continued to enforce it. Maybe the legal beagles could weight in on this but is this really unprecedented?

  12. daemonios:

    I was more baffled by Justice Scalia’s insistence on asking the plaintiffs’ counsel at which precise point in time forbidding same-sex marriages had become unconstitutional. I’m not familiar with these proceedings, but the attorney’s reply seemed very timid. My thoughts on this was that Scalia was taking the position that the US Constitution never changes its meaning as times evolve, i.e. it’s crystallised at the point of its passing. The attorney didn’t say it in full, but his take on this was apparently that the Constitution must be construed within the current political/sociological framework. He did counter with a rhetorical question: When did prohibiting interracial marriage become unconstitutional? Which I found funny, especially Scalia’s dismissal of it :)

  13. Ace of Sevens:

    Isn’t this the opposite of how even a rational basis case si supposed to work? The government has to make a positive case that they do have a rational basis. The plaintiff doesn’t have to prove there is no possible basis which coudl be rational.

  14. steve oberski:

    An what about the part of traditional marriage where if the wife is shown not to be a virgin she is taken to the edge of town and stoned to death ?

    And still practised in some less secular societies ?

    I can just imagine the conversations, well if we stop murdering women it may not turn turn to be a good thing.

  15. iknklast:

    Traditional marriage has been around for that long? Really? Much of what we think of as marriage is much newer. Marriages used to be frequently arranged (and in some countries still are) and had nothing to do with love. The concept of wife and husband living together and sharing life events isn’t all that old. And, for the record, didn’t feminism already destroy traditional marriage by considering men and women as partners? At least, that’s the complaint my mother always made. If feminists were allowed to be equal to their husbands/partners, her marriage would be ended, ruined, made intolerable (when in fact it was made intolerable by the fact that no one could live with her).

    So, if traditional marriage has already been ruined by (1) marriage for love against the designs of the parents; (2) interracial marriage; and (3) feminism, what exactly is left for same-sex marriage to ruin?

    And I’m not so sure I’m willing to concede that point that traditional marriage is good for society. I think what Alito think’s of as traditional marriage is not so good for society, because it makes half the population slaves and the other half masters. This isn’t good for society at all.

  16. steve oberski:

    @janiceclanfield

    Don’t be too glad, even as you speak conservative backbenchers of the Harper government are asserting their “right to free speech” which translated means that they want the right to express and act on their religiously mandated bigotry, and will try to re-open the abortion debate and push back reforms that have given women and homosexuals equal treatment under the law.

    Of course this is all being done under the faux concern of re-defining the start of life and stopping abortions done for child sex selection reasons.

    About the only good thing that could come out of this is that Canadians will realize what a bunch of religious theocrat wackjobs they actually are and vote them out in the next election.

  17. kenbo:

    “I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.” – Alito

    So he would allow someone’s beliefs to overrule 13 years of data? Because “not enough data”? How much data does a “belief” include?

  18. Michael Heath:

    tynk stated @ 8:

    I thought the SCOTUS was there to interpret the constitution and the laws of the US. Since when was determining what is good for society part of their jurisdiction? I am likely way off base, but isn’t that exactly what those accusing judges of legislating from the bench complain about?

    tynk not only expresses my objection to Justice Sam Alito’s question; but I would argue this objection disqualifies further consideration of J. Alito’s question regarding its other defects. As valid as they all are.

    Ed’s other objections aren’t all that far off from how cowardly Justice Anthony Kennedy was acting in yesterday’s Prop. 8 hearing. J. Kennedy repeatedly asked why the court even wants to take the right of gays to marry; because it hasn’t yet been addressed. You’d think part of being a good American, nay – a good human being, would be to defend the rights of other people when given the opportunity. J. Kennedy should consider these gay rights controversies a great opportunity and privilege to both defend the Constitution and help his fellow human beings, and not a cross to bear.

  19. gshelley:

    The difficulty with adequately responding to the “when did it become unconstitutional?” question lies with Scalia’s insistence on pretending that the 14th clearly outlawed anti-miscegenation laws from the start. If we was willing to be honest, and admit that the people who wrote the amendment, the ones who voted on it, the people who commented on it in newspapers at the time and the legislators in the years following didn’t think the same, it would be easier.

  20. Ed Brayton:

    slc wrote:

    Chief Justice Roberts took a shot at the Obama administration by opining that he found it unprecedented that it found DOMA unconstitutional but still continued to enforce it. Maybe the legal beagles could weight in on this but is this really unprecedented?

    No. The Reagan DOJ did it three times. The first Bush administration did it once, as did Clinton and Bush the Lesser.

  21. Olav:

    Ed, this is offtopic for this post but perhaps interesting enough for a blog post on its own:

    Indebted California county grants its administrator $400k salary for life.

  22. Stacy:

    So between this and Kennedy’s weaseling yesterday I take it we should not expect a paradigm shattering decision from the Court.

    Yes, I know, the odds of that were never good. But some of us cock-eyed optimists were hoping.

    Damn damn damn.

  23. dickspringer:

    All sorts of terrible outcomes were alleged to result from allowing interracial marriage (none of them accurate, of course).

    Obama would not have existed and therefore could not have been President. For the Scalitos of this world that would seem to be reason enough.

  24. tommykey:

    I would have replied to Alito that so-called “traditional” marriage can be risky for those who enter into it as well. The rich man discovers his wife is just a gold digger who fools around with the gardener. The wife discovers her husband is physically abusive or is engaged in criminal activity. One’s spouse can suffer from a horrible medical condition six months into the marriage that requires constant medical care. The choices we make in life open up opportunities for us as well as risks.

  25. tomh:

    @ #5

    Kennedy made the same dumb claim:

    “We have five years of information to weigh against 2,000 years of history or more.”

  26. d.c.wilson:

    Alito’s question definitely violates the principle CJ Roberts said that the role of judges was to just call balls and strikes. If he’s so concerned about the societal impact of policy decisions, membe he should run for Congress instead of joining the bench.

  27. MikeMa:

    I think Sotomayor said (paraphrasing): it took 50 years to allow interracial marriage, so is it required that we rush into the same sex marriage ruling? I hope I misheard this but really, do we want to perpetuate a discriminatory policy for 50 years before correcting it? Is 50 years to be the standard?

    History should not lock us into errors, it should instruct us to avoid them.

  28. Who Knows?:

    I was honestly surprised when I read about that argument coming from a Justice on the Supreme Court. It’s a question that is packed with errors and poor judgment.

  29. Who Knows?:

    @ # 25

    That’s the one I heard, both questions are equally bad. Really unbelievable.

  30. raven:

    How much time and data is enough time and data?

    This is just stalling and beating around the bush.

    I was honestly surprised when I read about that argument coming from a Justice on the Supreme Court.

    They have done that a few times. The one about marriage being thousands of years old.

    It’s not, at least in its present form. The details have differed greatly between cultures and over time. Biblical marriage allows men as many wives as they can round up and as many sex slaves as they can buy. In some cultures you buy your wife and she can be a child.

    And being old is no criteria. Slavery is old. Genocide is old. Stoning people to death for non-crimes is old. We are better than the ancients.

    The fact that myself as a nonlawyer and non-Supreme court justice could see this immediately makes me wonder how they got appointed and why.

    FWIW, I can’t tell how this will go. There have been two recent reports by the news services reading the tea leaves. They came to opposite conclusions. And they could both be wrong. The Supreme court could just punt in back to the states.

  31. jnorris:

    Note to Justice Samuel Alito : having a Supreme Court with its power to void a law was new at one time in this country. We all know the good and bad that came from that body. Now grow a pair and do the right thing for American citizens: strike down DOMA.

  32. Modusoperandi:

    kenbo “So he would allow someone’s beliefs to overrule 13 years of data? Because ‘not enough data’? How much data does a ‘belief’ include?”
    It should be noted that “data” means, “things that support Alito’s prefered outcome”.
     
    Michael Heath “J. Kennedy should consider these gay rights controversies a great opportunity and privilege to both defend the Constitution and help his fellow human beings, and not a cross to bear.”
    Kennedy’s just in it for the groupies.

  33. janiceintoronto:

    @steve oberski

    Harper and his thugs will be gone in the next few years. Hopefully the damage they are doing will be limited and reversible. The Omnibus Bills are really the worst thing they are doing. Create tons of laws, put them in one document 1600 pages long and let the opposition figure it out.
    Yep, we have a mess, but it’s a better mess than south of our border.

  34. Jadehawk:

    bah. legally speaking, “traditional marriage” (the one-man-one-woman thing) didn’t exist in the US even on paper until 1862, and THAT wasn’t enforced until at least 1882

  35. fifthdentist:

    By contrast, the effects of Citizens United — the purchasing of politicians, like Jefferson Davis buying a farm hand who will unfailingly obey without question, by immoral corporations and walking shitpiles like Sheldon Adelson– were very well known. And very much intended.

  36. D. C. Sessions:

    How would this argument apply to Citizens United?

  37. fifthdentist:

    @ D. C.,
    Alito’s contention was that if teh homos are allowed to marry, we don’t know what the fuck is gonna happen. Dogs and cats fornicating with each other in the streets in broad daylight? Men marrying their pet alligators? A new season of The Apprentice? Who the hell knows?*
    On the other hand, it was easily predictable that the impact of CU would be a monumental clusterfuck and perfersion of our supposed system of government, and Alito was just dandy with that.

    * Sure, rational people know that allowing gays and lesbians to marry will result in a lot of people settling down and living lives of massive boredom, taking out mortgages, weekend trips to bed and breakfasts in the fall, Little League games, cook outs and perhaps the occasional game of Scrabble.

  38. mikee:

    Surely as rational intelligent human beings we have the ability to predict what some of the issues might be if gay marriage goes ahead. I can’t think of anything untoward that word actually make sense. I can’t see churches bursting into flame, or heterosexuals suddenly finding the same sex to be more attractive than their husband or wife.
    For goodness sake there were more unknowns when we shot men into space on an adapted missile.
    The desperation of those opposed to gay marriage really knows no bounds

  39. democommie:

    If any undecided voter ever needed a nice, shiny exemplar of what happens when we have reptilican presidents and Greedy Old Prude majorities in one or both houses of Congress, well, here you have Exhibit 1.

    The notion that the current make-up of the SCotUS is going to be deciding things in the best interests of the bulk of humanity is ludicrous.

  40. sailor1031:

    @slc1

    “Chief Justice Roberts took a shot at the Obama administration by opining that he found it unprecedented that it found DOMA unconstitutional but still continued to enforce it. Maybe the legal beagles could weight in on this but is this really unprecedented?”

    Roberts is not familiar with the legal principle that it is the function of the supreme court, not of the administration, to decide on the constitutionality of an issue. Until the sc rules, doesn’t Obama has to enforce it as the law of the land. It’s not just a single law here, last I heard it affects over 1000 laws and rules. Can you imagine the whinging about executive overreach if Obama started making changes to any of those absent the sc decision?

  41. uzza:

    Whatever high school debate team this Alito guy is on should raise their standards, but if real judges consider this case wouldn’t it hinge on creating a separate class of persons? All ‘persons’ are supposed to have equal rights under the law, and gay people have the same rights to marry as anyone else. Gay or straight, you can marry a gay person, you just can’t marry a person of the same gender
    This gender-based distinction effectively creates two classes of people, each of which must contribute one marriage partner. The idea that women and men are two different classes of ‘person’ is at best … dangerous. OTOH, I’m not a lawyer, so maybe the big issue really is buttfucking.

  42. thumper1990:

    Yes, traditional marriage is a good thing for society.

    I disagree. Long term relationships are a good things for society, since they are demonstrably the best way to raise a child regardless of the sex of the parents. A “marriage” is simply a day of drunkeness in a fancy dress and top hat and while it may make the couple in question very happy, to society at large it is at best an irrelevance.

  43. slc1:

    Re uza @ #41

    Exactly so. The conservative position on gays is very simply anal sex is icky. That’s why they seldom say anything about lesbians.

  44. noastronomer:

    “Yes, traditional marriage is a good thing for society”

    Do we have any evidence that this is true? Perhaps the end of state-sanctioned marriage would be the greatest thing ever to happen to society? And not even the SCOTUS can see the future!

    Point being that, as others have pointed out, it is emphatically not the job of SCOTUS to deteremine whether laws are good or bad for society. It *is* their job to determine whether laws unduly infringe on the rights of anyone. Since the sole purpose of DOMA is in fact to infringe on the rights of individuals the answer should be obvious.

    If Alito is just going to throw his hands up and declare that he can’t make any judgement because he can’t predict the impact of laws on society perhaps he should just resign from the court? Though I do note that he didn’t appear to have any reservations about the possible impacts to society in other cases that he’s heard arguments on.

    Mike.

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