It was during oral arguments in Hollingsworth v. Perry, one of two same-sex marriage cases the Supreme Court took up in March, that Justice Sonia Sotomayor raised the inescapable question, the one that has always loomed over the campaign to radically redefine marriage: Where would the changes end?
“If you say that marriage is a fundamental right,” Sotomayor challenged Ted Olson, the lawyer urging the court to invalidate California’s Proposition 8 defining marriage as the union of a man and a woman, “what state restrictions could ever exist?” If the Constitution won’t permit marriage to be limited to spouses of the opposite sex, then how can it allow “state restrictions with respect to the number of people . . . that could get married” or “the incest laws?” Presumably states would still be free to ban child marriages, she said, but other than that, “what’s left?”