Soon after the case for marriage equality was won before the Massachusetts Supreme Court, in 2003, conservatives, clergy and laypeople alike, began fighting against it on religious grounds; God had handed down marriage of one man and one woman from on high.
That argument wasn’t to be found this week in the case presented by John Bursch, representing those opposed to marriage equality. Mr Brosch’s answer to the question posed by Justice Breyer as why marriage should be denied to same gendered couples was that marriage as an institution arose from purposes biological in nature. Namely, that the chief aim of marriage is that it binds children to their parents.
To get a fuller sense of how much biology has displaced religion in the defense of the bans in constitutional discourse, the terms “biology” and “biological” were uttered 25 times at the Court, while “religion” and “religious” were uttered only 7 times.
It appears that the states opposed to equal marriage arguing before the court had learned a lesson from the Religious Freedom Restoration Act (RFRA) battles in the various states which had occurred in the weeks just prior to the Supreme Court hearing on marriage equality. Arguments based on religious opposition to same gendered marriages would mark the state bans unconstitutional.
The only time religion entered the discussion was when Justice Sonia Sotomayor asked if clergy in the states which allowed same gendered marriages have been required to officiate at marriage ceremonies. Mary Bonauto, representing the plaintiffs challenging the MI ban on same gendered marriage, affirmed to Justice Sotomayor that they did not. After which, Justice Antonin Scalia bumbled around with a confusing comment that if marriage equality weren’t made a constitutional issue, perhaps states could enlist clergy who couldn’t accept same gendered marriage to officiate. Ms Bonauto clarified for Justice Scalia that indeed clergy could not be required to perform marriages at which they did not wish to officiate, on First Amendment principles. Justice Scalia seemed to quietly acquiesce.
Read more regarding the biology argument here.
image from theliberaloc.com
posted by David Allen