Forward Thinking

Tantalizing Hints From Supremes on Gay Marriage

By Michael Kaminer

  • Print
  • Share Share
getty images

The arguments over Proposition 8 – the California ban on same-sex marriage – gave tantalizing hints about the thinking of Supreme Court justices hearing the case.

After a lawyer in support of the ban, Charles Cooper, argued that procreation and child-rearing were fundamental to a state’s interest in marriage, Justice Ruth Bader Ginsburg brought up a previous Supreme Court case in which justices ruled prison inmates have a right to marry even though they may be prevented from procreating, according to the BBC.

“There are lots of people who get married who can’t have children,” Justice Stephen Breyer reportedly told Cooper.

And Justice Anthony Kennedy, often seen as a swing vote, suggested children of same-sex couples would suffer an “immediate legal injury” under the ban.

Despite the intriguing clues, a Jewish leader of the marriage-equality movement cautioned against reading too much into the arguments.

“Today’s argument was lively as the justices grappled with the mix of substantive and procedural questions raised in this challenge to Prop 8.,” Evan Wolfson, founder and president of Freedom to Marry, told the Forward in an e-mail.

“Now they are going to dig into the mountain of briefs and evidence from a who’s who of America … all showing there is no good reason for denying committed same-sex couples the freedom to marry. It’s always tempting, and often misleading, to speculate about oral argument, but the truth is that it’s in the opinion-writing and circulating process that the justices reach their result,” said Wolfson, widely regarded as a pioneer in marriage rights in the U.S.

Many analysts said the justices appeared to be considering a narrow ruling in the case and avoiding a pronouncement about whether a fundamental right to gay marriage exists in the constitution.

Wolfson said regardless of the outcome in the top court, gay marriage advocates plan to push state by state to win the right by passing laws.

“Rather than sitting around guessing and waiting, the best thing we can do to maximize our chances of winning, and to put ourselves in the strongest possible place going forward no matter what they do, is to keep winning over more hearts and minds and win more states, starting with Illinois, Minnesota, Delaware, and Rhode Island in the next several weeks,” he said.

Roberta Kaplan, the attorney at law firm Paul, Weiss who is making pro bono arguments to challenge the constitutionality of Proposition 8, was unavailable for comment, a spokesperson for the firm said.

The debate on gay marriage continues Wednesday with arguments over whether the federal government can deny benefits to same-sex couples that it offers to heterosexual couples.


Permalink | | Share | Email | Print | Filed under: supreme court, ruth bader ginsburg, jewish, gay marriage, anthony kennedy

The Jewish Daily Forward welcomes reader comments in order to promote thoughtful discussion on issues of importance to the Jewish community. In the interest of maintaining a civil forum, The Jewish Daily Forwardrequires that all commenters be appropriately respectful toward our writers, other commenters and the subjects of the articles. Vigorous debate and reasoned critique are welcome; name-calling and personal invective are not. While we generally do not seek to edit or actively moderate comments, our spam filter prevents most links and certain key words from being posted and The Jewish Daily Forward reserves the right to remove comments for any reason.




Find us on Facebook!
  • Is pot kosher for Passover. The rabbis say no, especially for Ashkenazi Jews. And it doesn't matter if its the unofficial Pot Day of April 20.
  • A Ukrainian rabbi says he thinks the leaflets ordering Jews in restive Donetsk to 'register' were a hoax. But the disturbing story still won't die.
  • Some snacks to help you get through the second half of Passover.
  • You wouldn't think that a Soviet-Jewish immigrant would find much in common with Gabriel Garcia Marquez. But the famed novelist once helped one man find his first love. http://jd.fo/f3JiS
  • Can you relate?
  • The Forverts' "Bintel Brief" advice column ran for more than 65 years. Now it's getting a second life — as a cartoon.
  • Half of this Hillel's members believe Jesus was the Messiah.
  • Vinyl isn't just for hipsters and hippies. Israeli photographer Eilan Paz documents the most astonishing record collections from around the world:http://jd.fo/g3IyM
  • Could Spider-Man be Jewish? Andrew Garfield thinks so.
  • Most tasteless video ever? A new video shows Jesus Christ dying at Auschwitz.
  • "It’s the smell that hits me first — musty, almost sweet, emanating from the green felt that cradles each piece of silver cutlery in its own place." Only one week left to submit! Tell us the story of your family's Jewish heirloom.
  • Mazel tov to Chelsea Clinton and Marc Mezvinsky!
  • If it's true, it's pretty terrifying news.
  • “My mom went to cook at the White House and all I got was this tiny piece of leftover raspberry ganache."
  • from-cache

Would you like to receive updates about new stories?




















We will not share your e-mail address or other personal information.

Already subscribed? Manage your subscription.