By Michael Dorf
During the oral argument in Obergefell v. Hodges, Justice Alito said to Mary Bonauto, the attorney arguing for the plaintiffs, that ancient Greek society was not hostile to gay people--indeed, Plato wrote approvingly of homosexuality. Yet the Greeks did not recognize same-sex marriage (SSM). Ergo, Justice Alito implied, the prohibition of SSM does not demean gay people. Bonauto essentially punted the issue, declining to speculate on the implications of the views of philosophers, but the brief exchange led me to imagine how a somewhat longer discussion of this question might have gone.
Accordingly, after the fashion of The Crito or The Phaedo, I present The Bonauto:
Persons of the Dialogue
SPECTATOR IN THE GALLERY
Scene: The Supreme Court of the United States
ALITO: Tell me, Bonauto, how can laws recognizing only opposite-sex marriage have the purpose of demeaning gay people when the ancient Greeks had only opposite-sex marriage and yet they approved of homosexuality?
BONAUTO: Well, for one thing, the ancient Greeks didn't have a conception of sexual orientation. I think they were all kind of bi.
ALITO: All the more reason to think that the Greek conception of marriage as only man-woman didn't reflect animus, isn't it?
BONAUTO: I don't know much about history, your honor, but I don't think that ancient Athens had a Fourteenth Amendment.
SCALIA: No no no, that's not the point. You say that it's irrational and nothing other than prejudice to deny same-sex marriage but for millenia we had only man-woman marriage. Did all of those societies harbor animus for homosexuals? Even the Greeks? The Greeks! [Stage direction: SCALIA holds out his hands and looks to the heavens.]
NOTORIOUS RBG: Isn't your answer that marriage itself was a very different institution back then and even until very recently, with a married woman's identity traditionally being absorbed into her husband's?
BONAUTO: Certainly, your honor, I was about to say that many of the institutions of ancient Greece would not pass muster under the modern interpretation of the Constitution.
ALITO: Like what?
BONAUTO: Slavery, for starters.
ALITO: Fair enough.
SCALIA: No it isn't fair enough. The Thirteenth Amendment explicitly bans slavery, just like the Fourteenth Amendment explicitly bans race discrimination.
NOTORIOUS RBG: No it doesn't.
SCALIA: [Not noticing NOTORIOUS RBG but speaking more loudly now] But no provision of the Constitution says anything about homosexuality. Which is fine, you know. I mean if a State wants to approve homosexuality or homosexual marriage or adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity, I mean, that's fine, but that's the business of the voters.
ALITO: What did Plato say about masturbation?
BREYER: I believe Plato condemned the "excess of self-love". It's an interesting question. Perhaps we should invite supplemental briefs.
BONAUTO: Uhm, which question would your honors like me to answer?
SCALIA: Mine. Always.
NOTORIOUS RBG: I believe what Justice Scalia wants to know is what the Reconstruction Congress thought about what James Madison thought about what Plato thought about same-sex marriage.
SPECTATOR IN THE GALLERY: You'll all burn in hell!
CHIEF: Marshalls, defenestrate that low-born rascal! [Stage direction: SPECTATOR IN THE GALLERY is thrown out the window]
SCALIA: That was refreshing.
CHIEF: The case is submitted.