The NYT has found a common theme in Alito's decisions: the importance of marriage. The NYT is either genuinely confused or is merely laying the groundwork to jump on him later:
One distinct theme emerges from an examination of 15 cases decided by Judge Samuel A. Alito Jr. involving abortion: his thinking is shaped by a traditional concept of marriage. . .
Last year, he ruled that the husbands of women forced to undergo abortions in China had themselves suffered persecution serious enough to warrant granting the men asylum in the United States. But he rejected similar claims from boyfriends or fiancés of women who had been forced to have abortions.
The categorical distinction was warranted, he wrote, because marriage was a central organizing principle in the law. "The marriage relation," he wrote, is important in "so many areas," including "income tax, welfare benefits, property, inheritance, testimonial privilege, etc."
Extending the asylum protection "to nonspouses would create numerous practical difficulties," he wrote.
After abortion, the legal definition of marriage may be the most divisive issue in American law, and Judge Alito will almost certainly hear cases concerning the rights of gay and lesbian couples if he is elevated to the Supreme Court.
While he has clearly given the legal status of marriage a great deal of thought and has seemed to endorse a traditional understanding of it, he has not participated in any significant cases involving gay rights. People on both sides of the gay marriage debate will be reading many of Judge Alito's abortion opinions with intense interest.
The mere fact that Alito believes in the importance (indeed, the fundamental importance) of marriage indicates he'll oppose gay marriage, and I gotta believe the NYT knows this. To gay rights folk, marriage is more like a status stymbol and it's intensely personal, like getting tickets to the lower bowl at a Los Angeles Lakers game. They don't view it as a fundamental building block of society. That view, after all, has procreation at the center of its worldview, and procreation isn't exactly a high priority among same sex participants.
And the importance of procreation to married couples, incidentally, should help us understand the common theme the NYT has unearthed in Alito's opinions.
