High court reflects modern marriage variety

Robert Barnes / The Washington Post /

Published Mar 18, 2013 at 05:00AM

WASHINGTON — There’s a widow who was a pioneer of the “modern marriage,” and one who never wed. Two who have been divorced.

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 tradition of marriage, the justices themselves 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.

But the issue comes before a court where four of the 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 have 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 two cases scheduled for March 26 and 27.

The same-sex marriage issue 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 Alito, 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 and the District of Columbia.

The act has been deemed unconstitutional 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.

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 couple 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.

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

Chief Justice John Roberts 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.

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.

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