An Answer for Justice Alito: Look to the Past

At yesterday’s U. S. Supreme Court hearing on marriage equality, Justice Samuel Alito asked, “But you want us to step in and render a decision based on an assessment of the effects of this institution [same-sex marriage] 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.” I have an answer for him.

The justices may not be able to see the future, but they can see the past. And although marriage for same-sex couples may be younger than cell phones, out same-sex couples, even with children, go back at least 40 years. Same-sex couples living together, although not necessarily acknowledged as gay or lesbian in the modern sense, go back even further. (Here’s just one example, and hardly the oldest.)

Furthermore, the question is not what the effects of “same-sex marriage” are. The question is what the effects are of allowing same-sex couples to form committed family units, which may (or may not) include children, and then withholding from those families the rights that other families receive.

As Justice Anthony Kennedy said, “On the other hand, there is an immediate legal injury or legal—what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California . . . that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

Indeed. But even Justice Kennedy erred when he said, “I think . . . that there’s substance to the point that sociological information [about same-sex marriage] is new. We have five years of information to weigh against 2,000 years of history or more.” Again, there is much more than five years of information about the benefit of committed, stable relationships for same-sex couples.

And if Justice Kennedy doesn’t think marriage has changed over the past two millennia, then he should go read Stephanie Coontz‘s Marriage, a History: How Love Conquered Marriage, among other works. If there’s one lesson we should learn about marriage from the past 2,000 years, it’s that marriage has always evolved to meet the needs of a changing society.

No, the justices cannot see the future. But they should look to the past.

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