My Lucky Grandson and the Institution of Marriage

Sometimes law and life coincide. Such is the case with same-sex marriage.

Last fall I attended my law school reunion and met a classmate who introduced me to his husband. I asked him a question: “If you had told me 50 years ago that you would attend this reunion with your husband, do you know what I would have said?”

“No,” he answered. “Tell me.”

“I would have said, ‘Sure you will, and I will have a daughter who will grow up, have a son, and marry a woman.””

My classmate gave me a puzzled look. “Yes,” I explained, “I did, and she did.”

I thought about my reunion conversation last week when the United States Supreme Court heard the gay marriage case. I decided to read the transcript of the argument, and I became witness to a very serious conversation about a very serious subject, the institution of marriage.

Counsel representing the pro-marriage side, making her first Supreme Court appearance, faced what is called a “hot bench,” meaning judges ready to pounce. Justice Scalia interrupted right at the beginning to ask whether she knew of any society that permitted same-sex marriage prior to the Netherlands in 2001. Before she could answer, he did so for her. “For millennia, not a single other society … .” I guess we know how that member of the Court will vote.

His erudite soulmate, Justice Alito, then brought up “ancient Greece” where, he pointed out, homosexuality was widely accepted, even by Plato. He asked whether they had same-sex marriage back then. Before counsel could respond, he answered his own question. His vote doesn’t seem in doubt either.

Then Justice Kennedy brought up the Kalahari people referring, according to Wikipedia, to Bushmen in Botswana. He explained that they regarded marriage as between a man and a woman, though he didn’t explain exactly what that has to do with the case at hand. I wonder why these judges ask questions when they already know the answers.

When the lawyer on the other side got up, it was all about procreation which, he argued, is the only interest the state has in marriage. Justice Kagan wasn’t buying that argument. Could government restrict marriage only to people who want children, she asked? Justice Ginsburg jumped right in. What about two 70 year-olds who want to get married she wanted to know.

“Well,” the pro-procreation, anti-gay marriage lawyer said, “a 70-year old man, obviously, is still capable of having children, and you’d like to keep that within the marriage.” I’m not making that up.

Yet there were moments of clarity. Justice Kennedy, whose vote will likely determine the outcome of the case, took issue with the notion that opposite-sex couples can have a bonding relationship with a child, while same-sex couples cannot. “That,” he said, “is just a wrong premise.”

My own experience confirms what Justice Kennedy said. I am pleased to report that my grandson is growing up with two wonderful mothers, both of whom know very well what it means to be a parent.

2017-05-19T20:27:34+00:00By |