March 27, 2013
Yesterday during the oral argument in Hollingsworth v. Perry, some of the Supreme Court justices seemed uneasy about having to decide the case. Justice Kennedy hinted certiorari might have been improvidently granted. And Justice Alito made a comment that caught quite a few reporters’ attention, and was quoted in numerous reports on the argument, saying, “Traditional marriage has been around for thousands of years. Same-sex marriage is very new.” According to Justice Alito, same-sex marriage is “newer than cell phones or the internet.”
I’m not sure if anyone else has pointed this out, but this isn’t true. Formal same-sex unions have been around for centuries — they existed in ancient Greece, Rome, and China. When Rome established Christianity as its official state religion, it banned same-sex unions by a law passed in 342 A.D. Under that law, those who entered into same-sex unions were to be executed.
More importantly, the concept of same-sex marriage isn’t new in the United States either. In 1970, two gay students in Minnesota applied for a marriage license and were denied by the county clerk. The couple sued and the case went to the Minnesota Supreme Court, which declared that Minnesota law allowed only for opposite-sex marriage, and that denying same-sex marriage was not unconstitutional. The couple appealed to the U.S. Supreme Court, claiming the Minnesota law violated Due Process and Equal Protection—the same arguments being made yesterday in Hollingsworth v. Perry — but the Court dismissed the appeal for want of a substantial federal question.
This 1972 case is Baker v. Nelson, and it has been cited numerous times as a precedential decision by those arguing against same-sex marriage. In fact, it was cited in Windsor v. United States, the case being argued today in the Supreme Court—but its precedential effect was rejected by the Second Circuit.
The point is: Justice Alito was wrong. The concept of same-sex marriage isn’t new. It’s not new to the United States, and it’s not even new to the Supreme Court. It’s been around since at least 1972, in a case Justice Alito should be familiar with because it comes up in the Windsor case being argued today.