As the arguments unfurled in Tuesday's case on same-sex marriage, the Supreme Court justices sounded more and more cranky.
Things were moving too fast for them.
How could the nine possibly assess the potential effects of gay marriage? They're not psychics.
"Same-sex marriage is very new," Justice Samuel Alito whinged, noting that "it may turn out to be a good thing; it may turn out not to be a good thing." If the standard is that marriage always has to be "a good thing," would heterosexuals pass?
Swing Justice Anthony Kennedy grumbled about "uncharted waters," and the fuddy-duddies seemed to be looking for excuses not to make a sweeping ruling. Their questions reflected a unanimous craven impulse: How do we get out of this?
This court is plenty bold imposing bad decisions on the country, like anointing W. president. Given a chance to make a bold decision putting them on the right, and popular, side of history, they squirm.
"Same-sex couples have every other right," Chief Justice John Roberts said. "It's just about the label in this case." He continued, "If you tell a child that somebody has to be their friend, I suppose you can force the child to say, 'This is my friend,' but it changes the definition of what it means to be a friend."
Donald Verrilli Jr., the U.S. solicitor general arguing on the side of same-sex marriage, told the justices, "There is a cost to waiting." He recalled the argument by opponents of interracial marriage in Loving vs. Virginia was to delay because "the social science is still uncertain about how biracial children will fare in this world."
The wisdom of the Warren court is reflected two miles away, where a biracial child is faring pretty well in his second term in the Oval Office.
It may take another case, even another court, to legitimize same-sex marriage, but the country has moved on. An ABC/Washington Post poll showed that 81 percent of Americans under 30 approve of gay marriage. Every time you blink, another lawmaker supports the issue.
Charles Cooper, the lawyer for the proponents of Proposition 8, which banned same-sex marriage in California, was tied in knots, failing to articulate any harm that could come from gay marriage and admitting that no other form of discrimination against gay people was justified. His argument, that marriage should be reserved for those who procreate, is ludicrous. Sonia Sotomayor was married and didn't have kids. Clarence and Ginny Thomas did not have kids. Roberts' two kids are adopted. What about George and Martha Washington? They only procreated a country.
As Justice Stephen Breyer pointed out, "Couples that aren't gay but can't have children get married all the time."
Justice Elena Kagan wondered if Cooper thought couples over the age of 55 wanting to get married should be refused licenses. Justice Antonin Scalia chimed in: "I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage — you know, 'Are you fertile or are you not fertile?'"
Cooper said California should "hit the pause button" while "the experiment" of gay marriage matures. He urged we not refocus "the definition of marriage away from the raising of children and to the emotional needs and desires of adults."
The fusty legal discussion inside was a contrast with the rally outside. There were some offensive signs directed at gays, but the crowd was overwhelmingly pro same-sex marriage. One woman summed it up in a placard: "Gays have the right to be as miserable as I make my husband."
While Alito can't see into the future, most Americans can. If this court doesn't reject bigotry, history will reject this court.
Dowd writes for The New York Times.