Some in the media have portrayed the Supreme Court justices' questions in Tuesday's historic marriage equality oral arguments -- particularly those by conservative justices talking about ancient Greece and the "millennia" -- as completely out of touch. That may be so when it comes to actual history, but sitting inside the court during arguments in Obergefell vs. Hodges on Tuesday as a protestor screamed out, "If you support gay marriage, you will burn in Hell!" I couldn't help but think that the court, judging by the questions posed and predictions based on 2013's Windsor decision striking down the Defense of Marriage Act, actually represents where the American people are on marriage equality.
Justice Scalia, after the heckler was carted out, broke the room's silence, quipping, "It was rather refreshing, actually." I doubt he'd have made a similar wisecrack had the protestor been pro-gay and called marriage equality opponents "haters." And it's likely that Justices Thomas and Alito agreed with the basic sentiments Scalia seemed to be expressing -- a sense of pride, even, that passionate religious opposition to same-sex marriage rang out loudly, at the same time that conservatives across the country continue to craft "religious freedom" laws to blunt LGBT equality in the states.
A majority of the country, we're told by the polls, favors marriage equality. In some recent polls it's a bare majority, while in a recent Washington Post/ABC News poll it reached a high of 61 percent. That majority was well-represented, in roughly those percentages, by the court's four liberals and by Justice Kennedy, who might represent the softer support in that majority. The liberals on the court, like many Americans who've come to support marriage equality, were not only much more well-informed on the issue than during the Windsor arguments in 2013, but much more forceful in their adversarial questioning.
Justices Kagan, Sotomayor and Breyer aggressively questioned John Bursch, special assistant attorney general for Michigan, arguing on behalf of the opponents of marriage equality. The questions and statements were relentless, and they debunked his weak argument that marriage is for the sole purpose of procreation, and therefore should be restricted to heterosexuals. Justice Scalia tried to throw him a lifeline, reminding him that his case didn't rest on procreation alone, but it didn't work. Joined by Justices Ginsburg and Kennedy, Bursch's arguments were completely slayed by the liberals on the court in the end.
Even as polls show a majority agree with the sentiments these pro-equality justices expressed, the roughly 35-to-40-something percent of Americans opposed to marriage equality seem to be very opposed, at least from what we see happening in the country. In that recent Washington Post poll that shows record high support overall for marriage equality, six in 10 Republicans are opposed -- surely a reason why Republican would-be and announced presidential candidates still remain opposed to gay marriage -- and among "conservative" Republicans, the same poll showed 71 percent opposed.
They, too, were well represented among the justices on Tuesday. While Thomas stayed silent as usual, it's fair to say from past decisions that he's in the camp of Scalia and Alito, who, like many in the 40-something percent minority, focused over and over again on how marriage has supposedly been defined as between a man and a woman for "millennia" -- again, a completely inaccurate read of history, but one with which many Americans agree. Justice Roberts joined in on this, stating that every definition of marriage he's seen defines it as between a man and a woman, as did Justice Kennedy, perhaps making some equality supporters nervous when he made the "millennia" claim too. Even liberal Justice Breyer challenged attorney Mary Bonauto, who argued on behalf of the gay and lesbian couples seeking to marry, by claiming marriage has supposedly been defined as between a man and a woman for "thousands" of years.
While in the case of Breyer, who later pummeled Bursch, this might have been a devil's advocate question to elicit an articulate answer from Bonauto, for Kennedy it seemed to be an expression of his discomfort with moving too fast, even though, by virtue of his history of rulings, he supports gay rights. He perhaps could be viewed as representing that mushier middle who support gay marriage, but still have some concerns about how far equality should go and how fast. An Associated Press poll released yesterday shows that while a majority of Americans believes gays shouldn't be discriminated against generally (and supports marriage equality), a majority believes wedding-related businesses shouldn't have to serve gay couples (52 percent, down slightly from a prior poll of a few months ago which showed 57 percent shared this opinion.)
The Supreme Court's ruling in Loving vs. Virginia in 1967, was a 9-0 decision, striking down bans on interracial marriage, and helping to rapidly shift public opinion. No one is expecting anything close to that in this case. Most legal experts see the 5-4 split we saw in Windsor in favor of marriage equality, though Justice Roberts could surprise and make it 6-3, and, whether he joins or not, the decision might be on narrow grounds and have few broad implications for gay rights beyond marriage. Either way, what the justices do by and large represents where the American people are on the issue and how, though a majority favors equality, the minority is substantial and deep-seated in its beliefs -- and encompasses entire parts of the country throughout the Deep South, where conservatives are busy promoting dozens of laws to blunt marriage equality. There will be an enormous amount of work for LGBT activists to do, and many more battles ahead, including those back at the Supreme Court.
Michelangelo Signorile's new book, It's Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality, is published by Houghton Mifflin Harcourt.
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