Opponents insist LGBTs want to “redefine the institution of marriage,” and it seems at least three Supreme Court Justices have swallowed that rotten nut. (More)

Squirrels aren’t big on definitions or institutions, so you know we’re not big on definitions of institutions. I’m not sure most institutions have definitions. Oh sure, Congress is an institution and the dictionary defines a congress as “the group of people who are responsible for making the laws of a country in some kinds of government.” But that doesn’t tell you much about the U.S. Congress – there are two groups: the Senate and House – and what it does say is incomplete and misleading.

In fact Congress is not solely “responsible for making the laws.” The president has to sign a bill to make it law, unless Congress overrides a veto, and federal courts can overturn it if they find it violates the Constitution. Most federal laws authorize executive agencies to make administrative rules for how the law will work. Self-executing treaties make law that supersedes acts of Congress. Executive orders are laws for federal employees. Commanders’ orders carry the force of law for military members in their chains of command. States, counties, cities, and even neighborhoods make local laws. And then there are contracts, which make law between the parties, within limits set by local, state, federal, and even international laws.

The definition of marriage as “the union of a man and a woman” is as incomplete and misleading as the dictionary definition of a congress. And despite common myth, that definition of marriage has not remained unchanged for millenia. A 1998 study of 1231 cultures found only 186 with exclusively nuclear, monogamous, male-female unions – the “traditional marriage” extolled as “universal” by conservatives – while 453 have occasional polygamy and the rest encourage polygamy in some form.

Even in the U.S., “the union of a man and a woman” has evolved. For much of our history, the husband subsumed the wife’s personhood and she could not own property or enter contracts on her own. For much of our history, in most states a wife did not have to consent to sex – or rather, courts held that she gave consent, once and for all time, when she said “I do” – and in several states marital rape is still legal unless it involves the use or threat of violence. And while common law marriage was once … common … only a handful of states now recognize such unions.

So the argument that allowing LGBTs to wed would “redefine the institution of marriage” is really a legalistic tap dance:

Gay and lesbian couples insist that they are not asking the Court to declare, for the first time ever, that gays and lesbians have a right to marry – that is, a new and very specific right to marry the person of one’s choice, when that person is of the same sex.

Rather, they contend that there is an existing right to marry, well established in every state, and they simply want equal access to it. It is their exclusion from a right now open to opposite-sex couples that they argue denies them legal equality and due process under the Fourteenth Amendment.

Conservatives know they would lose that Equal Protection argument, so they hoist the ‘redefining an institution’ flag, and Chief Justice John Roberts seemed inclined to agree:

Chief Justice John G. Roberts Jr. suggested that Ms. Bonauto was asking the court to do something radical.

“You’re not seeking to join the institution,” he said. “You’re seeking to change what the institution is.”

Or maybe he didn’t:

In a telling moment at Tuesday’s Supreme Court arguments over same-sex marriage, Chief Justice John G. Roberts Jr. suggested that he may have found a way to cast a vote in favor of the gay and lesbian couples in the case.

“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

I don’t usually agree with libertarians, but even a blind pig can stumble into a stopped clock at the right time:

This is exactly the point that advocates of the sex discrimination theory have been making for years: Laws restricting marriage to opposite-sex couples allocate legal rights based on gender. That is the very essence of sex discrimination.
It may be worth noting that Roberts’ formulation of the sex discrimination argument is very similar to ours, from page 8 of our brief: “Put simply, if Ann is permitted to marry Bob, but Charles may not marry Bob, then Charles is being discriminated against on the basis of sex because he is being treated “in a manner which but for [his] sex would be different.” Andrew Koppelman and I used similar phrasing in a recent USA Today op ed: “If same-sex marriage is forbidden, Anne is allowed to marry Bob, but Charles can’t. Charles is denied the right to marry Bob, solely because Charles is a man. Denial of a legal right solely because of gender is the very essence of sex discrimination.” That still doesn’t necessarily mean that the Chief Justice’s question was based on our brief. He certainly could have found a similar formulation elsewhere, or come up with it on his own.

So while the conventional view is this will come down to Justice Anthony Kennedy as the swing vote in a 5-4 decision, it may well be a 6-3 decision authored by Chief Justice Roberts. Regardless, when CNN warns you that “Supreme Court Justices skeptical of redefining marriage,” keep in mind that you’re reading a conservative argument presented as if it were an unambiguous fact.

It’s simply not true that marriage has, for millenia, been “the union of a man and a woman.” That’s not true in every culture today, and even in the U.S. the meaning of a marital “union” has been changing throughout our history. Of course facts won’t stop Justices Antonin Scalia, Samuel Alito, and Clarence Thomas from repeating that platitude … but they’re likely to be writing in dissent.


Good day and good nuts