Samuel Alito Thinks There Has Been a Constitutional Right of Four People to Marry One Another at Once Since 1967. Interesting.
Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John G. Roberts Jr. worried about shutting down a fastmoving societal debate.
Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching.
— Gay Marriage Arguments Divide Supreme Court Justices, Adam Liptak, New York Times, this afternoon.
A fun parlor game among some progressive pundits leading up to today’s gay-marriage arguments at the Supreme Court has been speculating about what would be the most ridiculous analogy to gay marriage offered by … well … Scalia, who has offered his share of silly analogies on such things before.
But early reports on the argument suggest that it was not Scalia but Alito who distinguished himself most on this front this morning. The constitutional issues in today’s six consolidated cases, called Obergefell v. Hodges, are essentially the same as the ones that were at issue in a 1967 case called Loving v. Virginia, in which the Court struck down as violative of the Fourteenth Amendment’s due process and equal protection clauses state laws that prohibited interracial marriage.
In fairness to Alito, I don’t know the specific context—the specific statement of counsel whom Alito was asking, perhaps, a follow-up question. But by mentioning Alito’s question in his short article written immediately after the argument, Liptak seems to suggest that Alito ‘s inquiry was pretty general.
So I’m guessing that Alito fears that a decision in favor of the gay couples who want to marry will remind people who want to marry three people at once—a.k.a., polygamy—that they have had a due process and equal protection right to do so since 1967. Or else he just forgot about Loving.
Which would make him a bedfellow, apparently, of Hillary Clinton, who last summer told NPR’s Terry Gross, “For me, marriage has always been a matter left to the states.” So, for her, it always has been, but for the interracial couple who challenged such a precept in Loving, it turned out not to be.
Post edited slightly for clarity. 4/28 at 6:45 p.m.