From the transcript as quoted in the article:
Justice Samuel Alito: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?
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Mary Bonauto: I believe so, Your Honor.
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Alito: What would be the reason?
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Bonauto: There'd be two. One is whether the State would even say that that is such a thing as a marriage, but then beyond that, there are definitely going to be concerns about coercion and consent and disrupting family relationships when you start talking about multiple persons. But I want to also just go back to the wait and see question for a moment, if I may. Because—
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Justice Antonin Scalia: Well, I didn't understand your answer.
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Alito: Yes. I hope you will come back to mine. If you want to go back to the earlier one –
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Bonauto: No, no.
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Alito: -- then you can come back to mine.
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Bonauto: Well, that's what -- I mean, that is -- I mean, the State –
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Alito: Well, what if there's no -- these are 4 people, 2 men and 2 women, it's not--it's not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let's say they're all consenting adults, highly educated. They're all lawyers. What would be the ground under--under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?
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Bonauto: Number one, I assume the States would rush in and say that when you're talking about multiple people joining into a relationship, that that is not the same thing that we've had in marriage, which is on the mutual support and consent of two people. Setting that aside, even assuming it is within the fundamental right –
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Alito: But--well, I don't know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that is a substantial break. Maybe it's a good one. So this is no -- why is that a greater break?
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Bonauto: The question is one of--again, assuming it's within the fundamental right, the question then becomes one of justification. And I assume that the States would come in and they would say that there are concerns about consent and coercion. If there's a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there'd be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don't apply here, when we're talking about two consenting adults who want to make that mutual commitment for as long as they shall be. So that's my answer on that.
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He's eviscerating her argument. As BL says, right out of the gate she concedes the states would be able to define certain aspects of marriage, for example, the number of members, but not the gender or sexual orientation of the members. Why only a partial power of definition? That's sandlot rule-making. Just pulling distinctions out of thin air. It's irrational.
And then she gets how lame this is so she trys to play the complexity card. The state should disallow marriages that are too hard to figure out relationally, whether party A has enough control over what transacts between parties B, C, and D to avoid issues with consent or coercion. But that again is pulling new rules out of thin air. Complex multi-party contracts form all the time, even in family law. Other than being a consenting adult, that sort of complexity consideration has never been entertained as a reason to outright prohibit a marriage.
Again feeling the pressure of the weakness of these arguments, she tries desperately to retreat to a safer question, where she might be able to buy some time and get her act together.
But Scalia pulls her back to the mess she just made. He says he doesn't understand, but he probably does, and just wants to expose the irrationality, the arbitrariness of her baseless rule-making.
Alito also recognizes these weaknesses and does not let her of the hook.
She has a nasty falter here. (BTW, I know how this feels, and it isn't fun. I might even be sympathetic if her subject matter were not so perverse. But I digress...)
Then Alito moves in for the kill. He goes with "all lawyers" to smash the complexity argument. You now have, theoretically, the most legally competent people you could ever ask for, lawyers, so they can handle any legal aspect such a complex set of relationships might raise. So now that's not a barrier to a foursome marriage. What else could be a rational barrier to such an arrangement, once we ditch the existing rules on sexual orientation? Because the dirty little secret in all this is that the requirement of having only 2 derives directly from marriage being defined as a he and a she, two. Take away that basis in biology, and no rational reason can
ever be found for limiting the number of parties to just two.
And then she steps in it again. The states would rush in because ... wait for it .. we've never done it that way before. Oh? But we've never done gay marriage before either. Using that logic, why wouldn't the states be justified in "rushing in" to stop it? Or put another way, why is the elimination of the heterosexuality requirement any less revolutionary than elimination of the number requirement? How would you objectively quantify that?
Then she's so bad off she tries the old "dust in your eyes" tactic. Justification? Really? What does that mean, Ms. Bonauto? Well, it has something to do with that complexity issue you just destroyed. Two gay individuals would have a less complex relationship than four lawyers. Oh? And the states will recognize that and make rules preventing really complex relationships ... that are already permitted in many other areas of the law. Ugh. A very flat way to end her presentation. It is as if they didn't really prepare seriously for this line of inquiry. If I am their client, I'm not feeling too happy about this. But as a defender of traditional marriage, this was great fun to watch. :)
Peace,
SR