here has been no want of “writing on the wall” about the upcoming cases on marriage. Justice Clarence Thomas could not help but remark on the point that a majority of his colleagues had already, and gracelessly, signaled their “intended resolution of that question.” And yet, writers and lawyers on both sides continue to expend their genius in writing briefs for the Court, clinging to the possibility that the words they set down may yet tip the balance.
But as the arguments pour forth, the curious asymmetry is that only one side is offering substantive arguments. Justice Kennedy has maintained in a string of cases now, running back to Romer v. Evans in 1996, that any adverse judgment on the homosexual life can spring only from an “animus,” with no reasoned foundation. With short steps he has now concluded that the aversion to same-sex marriage is mainly fed by the irrational aversion to the homosexual life. And therefore, the laws that bar same-sex marriage can no longer claim any ground for justification.
The conservative judges on the other side have declined to offer any moral argument for marriage as we know it. Nor have they drawn on the empirical studies bearing on the stability of “sexual orientation” or on the lives of children raised by same-sex couples. Justice Alito has gone so far as to note that those arguments, moral and empirical, have been made. But he has seen no need to lay those arguments on the record of the Court so that Justice Kennedy, his clerks, and his colleagues may be compelled to do the work of contending with them. The conservative justices fall back on this well-worn staple of conservative jurisprudence: that the “right” here cannot be found in the text of the Constitution or in any “tradition” marked in the accumulation of cases over the years; and so the Constitution itself cannot be the source of any such right that the judges have the authority to pronounce. The conclusion they draw is that the question needs to be returned to the judgment of the American people in the political arena. By this time in the seasons of our experience we might well ask: How has that theory worked? We can expect that it will succeed about as well with the issue of marriage as it has on the issue of abortion.