The PJ Tatler

What Media Bias?

Have a look at this lede by Adam Liptak on the gay-marriage issue that went before the Supreme Court today:

The Supreme Court on Tuesday seemed deeply divided about one of the great civil rights issues of the age: whether the Constitution guarantees same-sex couples the right to marry.

The justices appeared to clash over not only what is the right answer but also over how to reach it. The questioning illuminated their conflicting views on history, tradition, biology, constitutional interpretation, the democratic process and the role of the courts in prodding social change.

This is classic leftism in action. Remember, the issue of homosexuals marrying each other was hardly a gleam in its daddy’s eye not that long ago, opposed by both Barack Obama and Hillary Clinton and just about every else this side of Andrew Sullivan. And now the Supreme Court — two of whose members have already made up their minds publicly on the issue — is about to lay down the law in Obergefell v. Hodges.

Even before the Roberts court begins its obligatory pretzeling, let’s be clear. First, the Constitution does not explicitly guarantee homosexual marriage; if the Court finds such a “right,” in will involve some heavy-duty spelunking. Second, it’s not a civil-rights issue, since no law prevents gay men or women from marrying opposite-sex partners; until recently, in fact, the preferred PC term was “sexual preference,” not something as immutable as skin color. And third, it’s entirely possible that the Court — despite having four votes in the bag for “social change” already — might rule the other way:

Is there any hope, then, for the “traditional marriage” side? Absolutely, and the many pundits who have regarded this case as inevitable are, in my view, mistaken. It is the case that public opinion has come around, with between 55-60% of Americans now accepting of civil same-sex marriage. But public opinion is not the same as judicial reasoning, and Obergefell is no slam dunk.

The main reason is federalism. As Windsor itself relied upon, marriage has always been the states’ business, not that of the federal government. In a way, Obergefell would be the anti-Windsor, holding that a federal marriage right trumps the will of the states to define marriage as they see fit.

The main reason is federalism. As Windsor itself relied upon, marriage has always been the states’ business, not that of the federal government. In a way, Obergefell would be the anti-Windsor, holding that a federal marriage right trumps the will of the states to define marriage as they see fit.

The states defending their marriage bans also pitch specific arguments to Justice Kennedy. They point out that a robust debate is taking place on this issue across America, and that a Supreme Court ruling would shut it down. They say that this really is a matter of state sovereignty.

What do the two swing votes — which belong to, you guessed, Wacky Tony Kennedy and Weathervane Roberts — have to say? From Liptak’s report:

At the start of Tuesday’s arguments, Chief Justice Roberts said that he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman. “If you succeed, that definition will not be operable,” the Chief Justice said. “You are not seeking to join the institution. You are seeking to change the institution.”

Justice Kennedy, who many consider the likely swing vote on the case, weighed in with skepticism as the advocates for gay marriage made their case. He said the definition of marriage “has been with us for millennia. It’s very difficult for the court to say, ‘Oh, we know better,’ ” he said.

Difficult, maybe, but not impossible. The smart money still says that, in less than two decades, something once thought unthinkable — “marriage equality” — will be the new normal. Whether that is “swimming with the tide of history” or caving to transient social faddism remains to be seen.