The state’s cold-blooded interest is in chaining up heterosexual couples to make sure they raise their biological children together. And same-sex marriage might harm that; or at least, no one can prove it won’t. “If people think ... marriage is more about love and commitment than about staying bound to your children forever, there might be different consequences” from allowing them to enter the legal state of marriage. And those consequences might very well be that “if marriage and creating children don't have anything to do with each other, then what do you expect? You expect more children outside of marriage.”

The argument was delivered well, but it is a terrible argument. It is an argument that does not deserve to win, and likely won’t. Bursch tied the states’ fortunes indissolubly to it, to the point that he may have insulted both Justice Anthony Kennedy (the vote he must have) and Chief Justice John Roberts (whose vote he probably has, but can’t afford to take chances with).

The opening of the argument offered Bursch a more appealing possible path to victory. When Mary Bonauto, the legendary gay-rights lawyer, rose at the beginning of the case to argue for the same-sex couples, she ran into heavy weather right away—anxious questions from Kennedy, whose vote, almost everyone agrees, will determine the outcome of the case. “One of the problems is ... when you think about these cases you think about words or cases, and—and the word that keeps coming back to me in this case is—is millennia, plus time,” Kennedy said. True, it’s been more than a decade since Kennedy’s own landmark opinion in Lawrence v. Texas held that states cannot criminalize homosexual sex. In that decade, Kennedy said, “there's time for the scholars and the commentators and—and the bar and the public to—to engage in it. But still, 10 years is—I don't even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it—it's very difficult for the Court to say, oh, well, we—we know better.”

This argument appealed to John Roberts, who told Bonauto: “Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.” Justice Samuel Alito asked, “How do you account for the fact that, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?”

As long as the consequences of “redefinition” are left to the imagination, they are scary indeed. Alito professed himself puzzled why, if the Constitution requires states to recognize same-sex marriage, it would not require it to marry “two men and two women” or two siblings who loved each other. Antonin Scalia warned that clergy who oppose same-sex marriage would, of necessity, soon be stripped of their licenses. Justice Breyer tried to explain: “It’s called ‘Congress shall make no laws respecting the freedom of religion.’”