NO-ONE could have been surprised, when, in December 2005, the South African Constitutional Court held that same sex couples had a right to marry. Angry and affronted, perhaps, but not surprised. That’s because our constitution makes it clear we can’t discriminate against anyone on grounds of sexual orientation. Barring a couple from marrying merely because they are gay would thus be unconstitutional.
The legal situation in the United States is quite different, however, and so when that country’s highest court delivers its decision on gay marriage rights – expected late June – whatever the result it’s bound to surprise.
The issue, argued last week, was the first US Supreme Court case that I had listened to – thanks to that court’s incredibly efficient audio and transcription system.
Two issues were canvassed. First, should and could the court decide whether there was a constitutional right for same sex couples to marry? Second, if the answer to the first question was “no”, could states which did not recognise gay marriage refuse to recognise such marriages – and the rights and duties flowing from them – that were valid in other states?
Whichever way the decision goes the case will be named after James Obergefell. He married his long-time partner in Maryland, instead of their home state, Ohio, as Ohio does not permit same sex marriage. After his spouse, John Arthur, died, Obergefell wanted to be officially listed on the death certificate as the surviving spouse – but without success.
The stories of the other couples whose cases were consolidated and heard together with Obergefell were just as telling.
One of the first things to strike a South African was that because of the brevity of the arguments – generally 30 minutes a side – you might feel by the end that the matter hasn’t been as thoroughly canvassed as in our local courts. On the other hand, I suppose, at least those involved would generally have a pretty good idea of what time they’ll be home after the hearing.
First up was Mary Bonauto, for Obergefell and the other couples. At the end her argument there was a brief interruption when a protester was taken out of the court, shouting, ‘You will all burn in hell’. One of the judges commented it was ‘refreshing’ – perhaps because the protester’s language was more direct than the court usually hears.
The judges dreamed up some rather bizarre arguments to put to counsel, particularly those judges who obviously don’t want to change the traditional definition of marriage.
Ancient Greeks seem to have had little problem with gay relationships, mused Justice Samuel Alito, and even Plato wrote approvingly about them. And yet in that era marriage was still limited to opposite sex couples. Thus, he put to Bonauto, limiting marriage to heterosexual couples was surely not based on prejudice against gay people?
The same judge caused the first laughter of the day when he asked whether four people, two men and two women, would be allowed to marry – he seems to have had a kind of group marriage in mind – ‘Let’s say they are all consenting adults,’ he posited. ‘Highly educated. They’re all lawyers.’
Judges who have a reputation for conservative decisions were keen to probe whether the decision to allow gay marriage shouldn’t be left to each state individually, rather than being forced on states by the court.
If the judges forced all the states to allow such marriages, it would effectively close down the conversation, they suggested. But leave it open and allow public opinion and the political process to work, and people could change their minds – as happened in Maine where it took just three years from an outright ban to a law that allowed such marriage.
But US Solicitor General Don Verrilli didn’t agree. If the courts took a hands-off approach the current ‘demeaning, second class’ status of gay people barred from marriage would continue in those states that disapproved. ‘That is not wait-and-see,’ said Verrilli, ‘That is validation.’
Hard really to understand argument from the other side. “Leave us alone to decide”, was one view. Another was that children would suffer if gays could wed, as would the whole institution of marriage, though when judges probed those views the answers were less than satisfactory. And particularly so when, as Verrilli pointed out, hundreds of thousands of children are already being raised by same sex couples.
So, come June, will the US join the 21st century? – go on, surprise me.