High court reflects diversity of modern marriage

Some opponents of same sex marriage argue marriage is based on the ability to procreate, but several of the justices hearing next week’s Supreme Court arguments haven’t experienced the institution that way. The Post’s Bob Barnes explains. (The Washington Post)

There’s a widow who was a pioneer of the “modern marriage” and someone who never wed. Two divorcees.

There is a husband who married relatively late in life and adopted two children. Another is a prolific procreator, with enough children to field a baseball team and enough grandchildren to form a basketball league.

One is in an interracial marriage, which would have been illegal in his state only 20 years before his wedding.

As the Supreme Court prepares to consider the American tradition of marriage, the justices display a wide range of personal choices reflective of the modern experience.

In the court’s first full examination of same-sex marriage, the unifying theme of those defending traditional marriage is that government has an important interest in promoting marriage among heterosexual couples because of their reproductive ability.


Supreme Court Chief Justice John Roberts, left, stands with his family, wife Jane, daughter Josie, right, and son Jack, in front of the Supreme Court in Washington in 2005. (Manuel Balce Ceneta/AP)

But the issue comes before a court where four of the nine justices have never married or have had marriages that did not produce biological offspring.

Volumes of briefs have been filed in a pair of potentially historic cases raising issues that personally resonate with the justices — the role of adoptive parents, the place of couples unable to or uninterested in having children, and possible parallels with laws that once prohibited marriages between the races.

Their personal choices look “just like the rest of America,” said Andrew Cherlin, a sociologist at Johns Hopkins University and an expert on marriage whose work is cited in briefs filed in the cases scheduled for March 26 and 27.

The issue of same-sex marriage brings to the court questions of a state’s freedom to define and limit marriage and how far the Constitution’s guarantee of equal protection extends. Justices say they must look past their personal lives when deciding such weighty issues.

But the past has shown that each of the nine also brings a unique set of life experiences to the work. Justice Clarence Thomas has often written opinions with a racial perspective none of his colleagues share. Justice Ruth Bader Ginsburg has pointed out how sex discrimination is practiced in the real world. And Justice Samuel A. Alito Jr., a former prosecutor, often provides a lawman’s view on criminal justice issues.

As the court confronts the rapidly changing status of same-sex marriage, it will be considering two cases.

In the first, the issue is California’s Proposition 8, a 2008 voter-approved state constitutional amendment that restricts marriage to opposite-sex couples. The ban, enacted after the state’s high court decided gay couples must be allowed to marry, has been ruled unconstitutional by lower courts.

The other case concerns the Defense of Marriage Act, passed by Congress in 1996 to prohibit recognition by the federal government of same-sex marriages performed in those places where it is legal. There were none when the law was passed, but same-sex marriages are now legal in nine states, including Maryland, and the District of Columbia.

The act has been deemed unlawful by lower courts, which said it was unconstitutional to extend federal benefits to one class of legally married couples but not to another.

So, Proposition 8 concerns same-sex couples who want to be married, and DOMA involves those already wed. Those defending traditional marriage in both cases underline procreation as the purpose of wedlock.

As Congress said in passing DOMA: “Were it not for the possibility of begetting children inherent in heterosexual unions, society would have no particular interest in encouraging citizens to come together in a committed relationship.”

Charles J. Cooper, the lawyer representing Proposition 8 proponents, made a similar argument in his brief to the court. “It is the procreative capacity of heterosexual relationships — including the very real threat it can pose to the interests of society and to the welfare of children conceived unintentionally — that the institution of marriage has always sought to address.”

Those challenging Proposition 8 say that is an inadequate and incomplete view of what marriage means.

“In their 65-page brief about marriage in California,” write the lawyers for two same-sex couples seeking to overturn the proposition, “proponents do not even mention the word ‘love’ . . . This court has never conditioned the right to marry on the ability to procreate.”

Perhaps those lawyers were speaking to Justice Sonia Sotomayor. The 58-year-old justice wrote in her recent autobiography that she married her high school sweetheart with no intention of having children.

When she was young, Sotomayor was diagnosed with diabetes. She worried about her own health should she become pregnant and whether she would live long enough to raise a child.

“My projected longevity and the chance for a safe pregnancy had certainly improved” in the years since her diagnosis, Sotomayor wrote in “My Beloved World.” “Still, there remained the fear that I might not be around long enough to raise a child to adulthood.” She later divorced, although not because of that decision.

President Obama’s other Supreme Court pick, Justice Elena Kagan, has never married and has no children.

Chief Justice John G. Roberts Jr. and his wife, Jane, were both 41 when they married. Having children was always a goal, and four years later they adopted a daughter and a son, who were introduced to the nation when Roberts was nominated to the court in 2005.

Thomas has a son, Jamal, from his first marriage. But his marriage to Virginia Lamp Thomas, whom he wed in 1987, has not produced children. The pair concentrated on raising Jamal and later took in Thomas’s great-nephew, Mark Martin.

To Cherlin, who supports same-sex marriage, such examples render the procreation arguments “at least a century out of date.”

“Can the argument be that the way the chief justice had children is somehow second-class?” Cherlin asked.

But another marriage scholar, Ryan T. Anderson of the Heritage Foundation, said 41 states see the value in restricting marriage to heterosexual couples.

Allowing same-sex couples to wed does not “simply expand the existing understanding of marriage,” he said.

Instead, “it rejects the anthropological truth that marriage is based on the complementarity of man and woman, the biological fact that reproduction depends on a man and a woman, and the social reality that children need a mother and a father.”

Those who discount the procreation argument have filled their briefs with the words of an unlikely source: Justice Antonin Scalia, who is father to nine and grandfather to 33.

Scalia is not of the view that the Constitution protects homosexual rights, and his dissent in Lawrence v. Texas , the court’s 2003 ruling that struck down that state’s law outlawing sodomy, was a warning that it might lead to same-sex marriage, not an endorsement.

But a passage in the dissent speculated that procreation could not be a justification for limiting marriage to heterosexuals, “since the sterile and the elderly are allowed to marry.”

The briefs also contain passionate arguments on both sides about whether same-sex marriage can be compared with interracial marriage. The latter is a subject Thomas wrote about in his autobiography.

When he met Virginia Lamp, Thomas wrote, “I had no inclination to date outside my race.” She even offered to set him up with some of the black women with whom she worked. Eventually, Thomas wrote, he realized that they were soul mates and she was “a gift from God.”

“How could I let my own fears, or the bigotry of others, stand in the way?” Thomas wrote in “My Grandfather’s Son.” “As for Virginia, she was willing to fight anybody, including friends and family, who objected to our love.”

The couple settled in Virginia, whose law against interracial marriage provided the case in which the Supreme Court struck down such bans in Loving v. Virginia . The Thomases are among the 8.4 percent of American marriages with interracial partners, according to a Pew Research Center study of 2010 Census data.

All marriages, including those of the justices, have circumstances that make them special. Justice Stephen G. Breyer is Jewish, but he was married in the Anglican Church in a ceremony tailored to couples with different religions. One daughter became an Episcopal priest; another is raising her children in the Jewish faith.

And the court’s oldest justice, Ginsburg, had a prototypical “modern” marriage. She always worked and shared child-rearing with her husband, Martin, who died in 2010.

Ginsburg, who turned 80 last week, has often told the story that she grew exasperated being interrupted at work by phone calls from school with complaints about her “lively” son.

“This child has two parents,” she told the caller at one point. “I suggest you alternate calls.”

Martin Ginsburg did all of the family’s cooking — “the justice was expelled from the kitchen nearly three decades ago by her food-loving children,” he once explained — and he left a lucrative New York law practice to join his wife in Washington when she was named an appeals court judge.

The justices frequently officiate at marriages, and Ginsburg told the New Yorker in a recent interview that she thinks the reason no one has asked her or her colleagues to perform a same-sex marriage is for fear they would be criticized or asked to recuse themselves from this month’s cases.

Asked whether she would officiate if requested, she replied, “Why not?”

Discuss this topic and other political issues in the politics discussion forums.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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