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Protesters and supporters of same-sex marriage stand on the steps of the U.S. Supreme Court in Washington on Tuesday. The court heard arguments and could rule in a few months.(Photo: Mandi Wright/Detroit Free Press)
WASHINGTON — One man bellowed like a wounded beast, issuing dire forecasts of God's wrath as federal marshals dragged him bodily from the highest court in the land.
The other two sat on an elevated bench at the front of the cavernous courtroom, speaking more quietly but no less darkly about the abominations certain to follow if their fellow justices extended constitutional protection to same-sex marriages: Brothers marrying sisters. Tag-team polygamists demanding recognition of four-way unions.
For Justice Antonin Scalia and Justice Samuel Alito, no less than for the disruptive heckler, the end of the world was at hand.
Scalia recognized the kinship explicitly. "Actually, that was kind of refreshing," he remarked to the gallery's laughter after the noisy prophet of doom was ushered from the courtroom.
USA TODAY
Justices appear cautious, divided on same-sex marriage
Tuesday morning, as they heard arguments in a case most people believe will end with their court striking down Michigan's ban on same-sex marriages, at least four justices (including Anthony Kennedy, whose druthers will likely prove decisive) expressed lingering doubts.
Like many Americans, they remain nervous about amending a definition of marriage that has prevailed for most of recorded history.
But Scalia and Alito, both reared in a Catholic Church that still proscribes any expression of homosexuality, were in a class by themselves, their apprehension palpable as they considered the slippery slope before them.
"Suppose we rule in your favor in your case, and then, after that, a group consisting of two men and two women apply for a marriage license," Alito asked the attorney challenging Michigan's same-sex ban. "Would there be any ground for denying them a license?"
Scalia worried that priests or rabbis would be sanctioned for refusing to perform same-sex marriages if the court gave them constitutional protection.
Once the government had said yes to Adam and Steve, both justices demanded to know, how could it say no to Hansel and Gretel, or the Juilliard String Quartet?
BASTARD BIRTHS?
Justices Sonia Sotomayor (also a Catholic), Elena Kagan and Ruth Bader Ginsburg — all certain votes for the same-sex plaintiffs — sought to allay their Catholic colleagues' anxieties.
In the 37 states that now recognize same-sex marriage, had any minister been compelled to perform any marriage against his or her will? Sotomayor asked the plaintiffs' counsel.
"Of course not, your honor," the lawyer, Mary Bonauto, answered.
April DeBoer and Jayne Rowse, from left, meet with Rep. Sander Levin, and Sen. Debbie Stabenow, both D-Mich., at the U.S. Capitol.<span style="color: Red;">*</span>(Photo: Mandi Wright/Detroit Free Press)
Other justices suggested that states barred from discriminating against gays could still make rational cases for discouraging incest or polygamy.
But John J. Bursch, the lawyer representing Michigan in the doomed crusade to salvage the state's 11-year-old same-sex marriage ban, did his best to pour fuel on the paranoiac bonfire conjured by Scalia and Alito, warning that out-of-wedlock births would likely soar in states that sanctioned same-sex marriage.
How's that? several justices wanted to know.
"If marriage and creating children don't have anything to do with each other, then what do you expect?" Bursch answered. "You expect more children (born) outside of marriage."
This is, of course, the same losing argument Michigan Attorney General Bill Schuette tried to peddle in last year's trial before U.S. District Judge Bernard Friedman.
USA TODAY
Read and listen: Supreme Court oral arguments on gay marriage
Friedman ended up throwing out Michigan's same sex ban, reasoning that a state that permitted elderly and child-averse couples to marry could not rationally exclude gay couples on grounds it was merely promoting procreation.
The marriage-is-for-procreation isn't any likelier to fly with the aging members of the Supreme Court, none of whom seems to believe the government could dissolve their own marriages simply because they've lost the desire or capacity to reproduce.
SOOTHING THE SKEPTICAL
If you can count to five, you know Michigan's gay marriage ban will not survive the summer. Tuesday's argument leaves little doubt the same justices who struck down the federal Defense of Marriage Act two years ago are poised to make the same short work of state laws prohibiting same-sex marriage.
Still, it's hard not be moved by the real terror Scalia, Alito and Tuesday's heckling prophet of the apocalypse feel as their world crumbles around them. Change is hard, even when all that's really being demanded of you is a change of perspective.
USA TODAY
Supreme Court protester charged
You wish though, that these doomsayers could get to know April DeBoer and Jayne Rowse, and all the other same-sex couples poised to marry when the court removes the lingering legal obstacles.
You wish they could meet the children those couples are raising, children whose security and dignity will be greatly enhanced by the court's decision.
You wish you could let them visit a future America where the multiplication of same-sex marriages has done nothing to diminish the dignity of that institution — a future in which more foster children abandoned by their biological parents find safe, loving homes, and no rabbis or priests are sent to prison for honoring their own conceptions of marriage.
You wish, in short, that the doomsayers could see for themselves that a world with more married people in it is not so scary, and that in the end, it's going to be all right.
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