( CNN ) The best part of the Supreme Court oral arguments about marriage equality was when Justice Ruth Bader Ginsburg alluded to S & M . OK , she did n't actually mention S & M , but Ginsburg talked about how the institution of marriage has already changed from long ago , when it was `` a dominant and a subordinate relationship . '' `` Yes , it was marriage between a man and a woman , but the man decided where the couple would be domiciled , '' said Ginsburg . `` It was her obligation to follow him . '' Mary Bonauto , the attorney arguing on behalf of the four same-sex couples who petitioned the Supreme Court , said in response : `` That 's correct . ... For centuries we had and Europe had this coverture system where a woman 's legal identity was absorbed into that of her husband and men and women had different prescribed legal roles . And again , because of equality and changing social circumstances , all of those gender differences in the rights and responsibilities of the married pair have been eliminated . '' Once upon a time , wives were the legal property of their husbands and `` marital rape '' was not only not a crime but not even a concept . To argue that the definition of marriage has not changed since then is either willfully ignorant or woefully naïve . Justice Anthony Kennedy , widely believed to be the key swing vote amidst a court otherwise generally evenly divided along ideological lines , at one point referred to `` the nobility and the sacredness of marriage . '' Which is true , if you ignore the history of its past and the reality of infidelity in the present . If anything , the nobility and sacredness of marriage need protecting from straight people . One downside to arguing that marriage has `` always been '' between a man and a woman is that , therefore , any problems in the institution of marriage are also plainly the responsibility of heterosexual couples , too . The one justice who did n't ask a question is Clarence Thomas , who , with one slight exception , has now gone over nine years without a single inquiry from the bench . It should be carefully noted here that Thomas is a black man married to a white woman . Anti-miscegenation laws banning interracial marriage were first introduced in 1661 in Maryland . That means that by 1967 , when the Supreme Court considered the constitutionality of such laws , bans against interracial marriage had been officially part of the American `` definition '' of marriage for over 300 years . Just 20 years after the Supreme Court struck down the anti-miscegenation laws still in effect in 16 states , Clarence Thomas and his wife , Virginia , were married . James Braxton Peterson , director of Africana Studies at Lehigh University , has written , `` The fact that the Thomas ' marriage required progressive Supreme Court action must in some way inform their sense of this moment . '' Or maybe not . Clarence Thomas did n't say one way or the other , though his remarks outside court and in dissenting opinions suggest he 's firmly opposed to the Supreme Court doing for other loving relationships what it once did for his own . But perhaps the example of Clarence Thomas speaks to what seems most glaring about the oral arguments in the marriage equality cases , namely that just as with the rest of America , the Supreme Court seems to have increasingly become a place for partisan theatrics . Perhaps this was always the case , justices hiding their personal beliefs behind legal rationales . Still , the marriage equality arguments seemed even more shaped by politics than the law . On the one hand , pulling pages right from Republican presidential candidates , conservative Chief Justice John Roberts suggested the court should n't intervene in a state-driven social debate . Aping conservative religious activists , Justice Samuel Alito asked whether four people could then get married . On the other hand , Justice Stephen Breyer talked about marriage as a fundamental liberty while Justice Elena Kagan pushed back on whether legalizing same-sex marriage would really harm or take anything away from opposite-sex couples . Both arguments , and the moral force beneath them , seemed to echo gay rights messaging . Still , the highly political and momentous decision in Loving vs. Virginia was unanimous . Whichever way the court rules on same-sex marriage , it appears unlikely the ruling will be unanimous . So , while the definition of marriage has unarguably evolved , a fact hopefully the Supreme Court will soon confirm with a ruling in favor of marriage equality , what 's also clear is that the court has evolved . Blown by the winds of partisanship whipping up America in general , the Supreme Court is increasingly divorced from reason and submissive to politics . The question remains not what is fundamentally the right decision — I think both law and morality are clear in favor of equal treatment . The question is simply which side of the court will dominate the other .
Sally Kohn : Supreme Court seems to have increasingly become a place for partisan theatrics . The justices are now divided along ideological lines on issues such as abortion, affirmative action and gay marriage.