Last Tuesday, the Supreme Court heard appeals from a decision which supported bans against same sex marriage in four states.  The questions were: does the Constitution require all states to license same sex marriages and, if not, must a state honor such a marriage which occurred under the law of another state?

The constitutional issue is whether marriage is a fundamental right which cannot be denied.  It is not so easy, however:  if it is a fundamental right, how is that right defined?  Is it a right for all people, or only for people marrying the other sex?  Does the right encompass polygamy?  Is the case really just a simple matter of sexual discrimination: Jim can marry Jane but cannot marry Joe?  Are Jim and Joe being discriminated against?

According to chief counsel to ACLU, the arguments before the Justices were surprisingly unsophisticated, akin the discussion you might have with a friend over beers.   That is unfortunate as the cases should turn on constitutional issues, not on simple majority vote of who believes, and who does not believe, in a particular result. You don’t vote on fundamental rights.  As Justice Kagan has said: “We do not live in a democracy.  We live in a constitutional democracy.”

Highlight (or lowlight) of the argument: the attorney arguing for the states in support of same sex marriage bans observed that marriage is a fundamental right only between people of the opposite sex which is designed to have children raised properly by their natural parents.  I wonder whether Chief Justice Roberts squirmed at that notion, underneath his robes; all of his children are adopted.