But fertility and parenting skills were never prerequisites for marriage. And experience shows that same-sex married couples are just as capable as opposite-sex couples of raising adopted children as their own in a stable and loving home.
The trump card for traditionalists in the past was the argument that homosexual conduct violated society’s shared concept of sexual morality.
Justice Kennedy’s 2003 decision in Lawrence v. Texas eliminated that argument while invalidating a Texas law that criminalized sodomy for homosexuals but not for heterosexuals.
In that 6-3 decision, Kennedy said moral disapproval of a particular practice was not a sufficient reason to uphold a law prohibiting that practice.
In a dissent, Justice Antonin Scalia said the decision would undermine a range of laws based on morality, including against bigamy, adult incest, bestiality, and obscenity. He said it would also undercut any defense of the traditional definition of marriage.
“Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned,” Justice Scalia wrote in 2003.
At issue now – nine years later – is a string of judicial decisions in Massachusetts, New York, Connecticut, Arizona, and California striking down laws that draw distinctions between heterosexual and homosexual unions. In the process the courts are establishing new legal protections for same-sex couples, as well as for gay men and lesbians in general.