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!
  • Clueless parenting advice from the star of "Clueless."
  • Why won't the city give an answer?
  • BREAKING NEWS: Israel has officially suspended peace talks with the Palestinians.
  • Can you guess what the most boring job in the army is?
  • What the foolish rabbi of Chelm teaches us about Israel and the Palestinian unity deal:
  • Mazel tov to Idina Menzel on making Variety "Power of Women" cover! http://jd.fo/f3Mms
  • "How much should I expect him and/or ask him to participate? Is it enough to have one parent reciting the prayers and observing the holidays?" What do you think?
  • New York and Montreal have been at odds for far too long. Stop the bagel wars, sign our bagel peace treaty!
  • Really, can you blame them?
  • “How I Stopped Hating Women of the Wall and Started Talking to My Mother.” Will you see it?
  • Taglit-Birthright Israel is redefining who they consider "Jewish" after a 17% drop in registration from 2011-2013. Is the "propaganda tag" keeping young people away?
  • Happy birthday William Shakespeare! Turns out, the Bard knew quite a bit about Jews.
  • Would you get to know racists on a first-name basis if you thought it might help you prevent them from going on rampages, like the recent shooting in Kansas City?
  • "You wouldn’t send someone for a math test without teaching them math." Why is sex ed still so taboo among religious Jews?
  • Russia's playing the "Jew card"...again.
  • 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.