The way it worked in conference was like this:
Justice Scalia, peering down at his notes, raised the matter of tradition and, in an aside, what God wanted. He observed that the institution of marriage has been around for thousands of years. The ancient Hebrews did it (in multiples of four), and so did the Greeks, Romans, Ottomans, Arabs and, of course, Americans galore –- both North and South. Should we not pause in our rush toward same-sex marriage and see where this thing leads us? For, surely, this intemperate rush to jettison tradition will lead, as night follows day, to a devaluation of the institution of marriages –- Elizabeth Taylor and the Kardashians notwithstanding.
Other justices took somewhat the same slant. They wondered what the rush was. The issue was being solved state by state, and public opinion was changing –- quite rapidly, as it turned out, Justice Kennedy said. The people themselves should decide this question, not nine unelected judges. And, yes, Justice Alito chimed in, same-sex marriage would surely follow –- as day does night, or the other way around, he added.
Patience, patience, many of the justices counseled. A momentous change was being proposed. It could alter the economy. It could change the country’s demographics. But one of them –- possibly it was Ginsburg –- said that same-sex marriage would really change nothing. Those who could would still procreate –- birds do it, bees do it, even educated fleas do it, sang Justice Kagan, citing Cole Porter (op. cit. ibid.) -– and indeed, Scalia himself was the court’s numero uno procreator, having sired nine children and all the time living in New York and Washington, urban areas literally saturated with homosexual men and women and, unknown to him, transgendered persons, some of color.
But Justice Breyer spoke up. We cannot tell human beings to wait for the right to do what others simply took for granted, he said. Some people have waited 30 or 40 years to wed, and now they may be told to wait some more. Why? On what constitutional basis could this right be denied them?
“Hath a gay person eyes?” Breyer asked. “Hath not they organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer, as a heterosexual? If you prick them, do they not bleed? If you tickle them, do they not laugh? If you poison them, do they not die?”
The court was stunned by this outburst. Justice Thomas called it virtually Shakespearean, and the court, in turn, was stunned that he had spoken.
With that, the conference ended on the matter of same-sex marriage, and the court moved on to remand an writ of certiorari regarding a petition of habeas corpus brought by a party with no standing in a matter of no importance.