What Hath SCOTUS Wrought?

Alito says that the Court has decided an ongoing debate between two views of marriage.

“The first and older view, which I will call the ‘traditional’ or ‘conjugal’ view, sees marriage as an intrinsically opposite-sex institution. BLAG notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex . . . . While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.”

The second view is more recent:

“what I will call the ‘consent-based vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment— marked by strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination.”

What the plaintiff asked and what SCOTUS granted was an endorsement of the consent view and a rejection of the traditional view. The traditional view is now officially discriminatory, since, as the majority said, excluding same-sex couples from the full benefits of marriage is motivated by nothing but malice toward a group that the States have sought to protect.

The federalist argument of the majority may impede but won’t finally withstand the force of this deeper decision about the character of marriage. States that define marriage in a traditional way will be challenged in court, and I think we know how this Court will decide when that happens.