Video: 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.
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.
(Manuel Balce Ceneta/AP) - 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.
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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?”
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