If you’d like a quick primer on what the Supreme Court will be deciding in the next few months, this New York Times chart on how the justices could rule on Prop 8 and DOMA is clear and helpful.
SOTOMAYOR: Mr. Olson, the bottom line that you're being asked—and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what state restrictions could ever exist? Meaning, what state restrictions with respect to the number of people…the incest laws, the mother and child…I can accept that the state has probably an overbearing interest on protecting a child until they're of age to marry, but what's left?
OLSON: Well, you've said in the cases decided by this court that the polygamy issue, multiple marriages, raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you—if a state prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.
The first mistake Olson makes here is that he thinks people are being denied marriage because of their sexual orientation (i.e., “their status”). This has never happened. There is no test whatsoever for sexual orientation when a person applies for a marriage license. There is no class of people being told they’re not eligible for marriage. In fact, the exclusion of same-sex couples (that’s same-sex couples, not homosexual citizens) from marriage isn’t about prohibiting something on the basis of bad conduct or the status of a group, it’s about the definition of marriage.
As Justice Roberts pointed out:
When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.
If marriage is a particular thing, then everyone has a right to take part in that institution as it stands, regardless of their personal characteristics. But to be part of the institution, they must be part of the institution. They don’t have a right to change that institution into something different simply because they don’t want to be part of it the way it is.
Imagine a public park builds a tennis court so that people can come to play tennis. Nobody should be denied the right to play tennis games there. Period. It’s a public park, open to all. One day, a group of basketball players comes to the park, wanting to play a game, but they find they can’t play basketball on a tennis court. They immediately go to City Hall to complain: “Everyone has the right to competitive exercise with a ball on that court! We’re being denied our rights based on our status as basketball players!” Can you see the problem? The fact that they don’t want to play tennis doesn’t give them the right to demand that the government build a different court at the park. Their right isn’t to “competitive exercise with a ball” (tennis shares that in common with basketball, but it can’t be reduced to that), their right is to play tennis on that court, just like everybody else.
Please don’t take that illustration farther than it’s intended to go. I’m merely trying to show that rights aren’t being denied simply because a person (or group of people) doesn’t want to take part in something. The park promises the same thing to all. It doesn’t promise “competitive exercise with a ball,” it promises tennis. And tennis excludes basketball—not out of prejudice, but by nature. One could certainly argue over whether the park ought to change that court into something different, but as things stand, no rights are being violated. Neither justice nor equality demands that the park change its court to accommodate the desires of the basketball players to play a different game in that space. The same is true for marriage.
Secondly, even if it were legitimate for Olson to make the argument that homosexuals are being denied the right to marry “based upon their status,” I don’t see why one couldn’t equally say that polygamists are being denied their rights based upon their status as people who prefer to have many marriages. Isn’t that class of people being denied their right to define marriage for themselves, if Olson’s way of looking at this is correct?
Another problem: Olson says polygamy is an “entirely different thing” from same-sex marriage because it “raises questions” about legal, social, and moral harms, and that’s what prevents it from being a right. But in making this distinction, he’s merely assuming what he needs to prove. Those defending traditional marriage also have arguments explaining the harm that will be caused by removing the core principle of sexual complementarity from the definition of marriage (including the legal difficulties resulting from surrogacy, sperm and egg donors, etc.—difficulties that will inevitably result because a third person outside the family must always be involved in the creation of a child for same-sex parents).
If Olson is correct that the harm that would result to society from changing the definition of marriage is grounds for not changing the definition to accommodate a particular group’s desires, then same-sex marriage can be disallowed if it causes harm.
But if Olson is correct that same-sex marriage is not merely a desire, but actually a right that can’t be disallowed, even if it raises questions of harm, then Sotomayor’s question stands: If defining marriage for yourself is a fundamental right, what state restrictions could ever exist?
Olson can’t have it both ways.