If during the course of some Twilight Zone moment I had found myself on the Supreme Court this past term here’s how I would have approached the gay marriage issue before the Court:
First, the objections to gay marriage.
1. Gay marriage is against religious teachings. Perhaps, but in a society whose core political charter guarantees free exercise of religion, this is an irrelevant argument.
2. Gay marriage goes against tradition. Perhaps, but then so does marriage based on companionate monogamy. Historically, most marriages were arranged by the families of the bride and groom, and polygamy was also widely practiced, at least among wealthy males. Additionally, an appeal to tradition alone often produces embarrassing results. Case in point: “Tradition” was one of the arguments used by slavery apologists in past times.
3. Gay marriage is unnatural. Perhaps, but the same was said at one time about interracial marriage, which was illegal in parts of the United States until 1967. It is doubtful that many Americans really want to go down that road.
4. A same-sex coupling does not produce children. No, it doesn’t. But then neither does a marriage between two sixty-five year old heterosexual partners. Besides, it’s not like the creation and raising of children is the only or even the primary function of marriage in our own culture. People get married for all kinds of reasons: romance, companionship, sex, money, social status, to defy their parents, immigration status, insurance benefits, and many other things.
Ideally, marital relations would not be a matter that involves the state. Instead, different religious and cultural communities would have their own standards concerning what constitutes a legitimate marriage, and the purely economic aspects of marriage would be no different that an ordinary business contract.
However, the fact remains that we do have state-sanctioned marriage, and this status conveys on marital partners a variety of legal benefits. Among these are inheritance rights, property ownership rights, survivor benefits in the event of the death of spouse, critical decision making prerogatives when a spouse is incapacitated, power of attorney, hospital visitation rights, the exemption of marital partners from testifying against one another in court, and a number of other things.