Newspaper article International New York Times

History Weighs on Justices at Gay-Marriage Hearing ; Supreme Court Considers Whether Rights Argument Justifies Break from Past

Newspaper article International New York Times

History Weighs on Justices at Gay-Marriage Hearing ; Supreme Court Considers Whether Rights Argument Justifies Break from Past

Article excerpt

History loomed large for the Supreme Court as the justices heard arguments on whether the Constitution guarantees gays and lesbians the right to marry.

For thousands of years, in societies around the globe, marriage has meant the union of a man and a woman. "And suddenly," said Justice Stephen G. Breyer, "you want nine people outside the ballot box" to change that by judicial fiat.

History weighed heavily on the nine members of the Supreme Court on Tuesday as they debated whether the Constitution guarantees gays and lesbians the right to marry. That even Justice Breyer, clearly a supporter of same-sex marriage, felt compelled to take note underscored the magnitude of the issue before the court.

With intellectual side trips to Plato's Greece and the land of the Kalahari Bushmen, Tuesday's arguments challenged the justices to decide whether they are ready or willing to overturn not just legal doctrine but also embedded traditions in the name of equal rights. At what point do thousands of years no longer determine right and wrong? And if what was wrong is now right, is it up to them, instead of voters and legislators, to say that?

The collision of ancient understandings and modern sensibilities put the court right in the middle of one of the most defining social issues facing 21st-century America. If the justices seemed eager to avoid a definitive ruling two years ago, when the issue last came before them, they seemed acutely aware on Tuesday that there may be no turning back this time.

The prospect of breaking so decisively from the past struck not just Justice Breyer but also several of his colleagues, who repeatedly noted the longevity of the institution they had been asked to address.

"The word that keeps coming back to me in this case is millennia," said Justice Anthony M. Kennedy, widely considered the swing vote.

"Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife," said Chief Justice John G. Roberts Jr.

"As far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex," Justice Samuel A. Alito Jr. said.

"You're asking us to decide it for this society when no other society until 2001 ever had it," said Justice Antonin Scalia.

Justice Kennedy noted that the Kalahari people of southern Africa, without a modern government like that in the United States, defined marriage as between a man and a woman. …

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