Attorneys for both sides get tough questions in a case that could make same-sex marriage a constitutional right.
After decades of activism and votes in statehouses and polling places around the country, a decision about whether gay marriage will become legal in the United States appeared on Tuesday to fall to one man.
Justice Anthony Kennedy seemed at times sympathetic to both the desire of gays and lesbians to marry and to opponents who suggested such a ruling would amount to federal government overreach during arguments before the Supreme Court. The case, which analysts have long speculated would lead to the court’s sanctioning of gay marriage nationwide, was closely divided between the court’s liberal justices – who said the definition of marriage should be extended to same-sex couples – and its conservative wing, which questioned whether such a ruling would fundamentally change the institution.
Kennedy, considered the swing vote on the issue, didn’t seem certain of a legal path that would grant gay couples the constitutional right to wed, grilling both those challenging and defending state prohibitions on gay marriage while giving little indication about which argument he will ultimately side with.
“This definition has been with us for millennia,” Kennedy said. “And it’s very difficult for the court to say, ‘Oh, well, we know better.’”
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Attorneys before the court argued two questions in Obergefell v. Hodges, a landmark case that could finally cement the legal landscape surrounding same-sex marriage after the court previously shied away from doing so: whether state bans against gay marriage are unconstitutional and if states banning gay marriage should be required to recognize gay marriages granted by other states.
Attorneys on both sides of the second question – Douglas Hallward-Driemeier, representing gay married couples seeking out-of-state recognition, and Tennessee Associate Solicitor General Joseph Whalen, arguing that Tennessee has the right not to recognize such marriages – struggled to answer the justices’ questions in their portion of the arguments, making it difficult to see an outcome in which the court would allow same-sex marriage to be legal and recognized in some states but not all. Kennedy was notably silent for most of this portion of the arguments.
That sharpened the focus even more on the ultimate, underlying question that had been brought to the Supreme Court: Is marriage a constitutional right that should apply to gays and lesbians the way it applies to heterosexual couples?
Arguing yes was Mary Bonauto, who helped win a monumental gay marriage case in Massachusetts over a decade ago. She said, despite Kennedy’s concerns, the place of same-sex couples in society had been debated for decades.
“It has been exhaustively aired, and the bottom line is that gay and lesbian families live in communities as neighbors throughout this whole country,” she said.
Defending the right of states to ban same-sex marriage was John Bursch, Michigan’s former solicitor general, who said the case was not about not how states define marriage but about who gets to define it, and that such a change should be left to the states’ political processes.
A major point of contention in his arguments was what the state’s interest would be in excluding gay people from marriage, with Justice Ruth Bader Ginsburg and the other liberals on the court prodding Bursch on his suggestion that allowing gay couples to marry would detract from heterosexual marriages.
Bursch argued that allowing gay couples to wed would shift the state’s interest in marriage away from child-rearing, suggesting that gay marriage is primarily about an emotional attachment and prompting Kennedy to jump in.
“That assumes that same-sex couples could not have the more noble purpose” of raising children, the justice said.
The court’s conservative wing was as tough on Bonauto’s arguments as liberals were on Bursch’s.
“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?” Justice Samuel Alito aid.
The conservatives also followed up on Kennedy’s argument that same-sex marriage is a relatively recent development. But Ginsburg helped Bonauto out by suggesting that the ideas surrounding heterosexual marriage had shifted, with men no longer being seen as holding the “dominant” role and women as the “subordinate.”
Bonauto pushed hardest against the idea that states should take a “wait and see” approach and observe the policy ramifications of same-sex marriage being granted in some states before legalizing it in others; she argued that states used similar logic to defend bans on interracial marriage, which the Supreme Court struck down in 1967.
While some gay rights activists believed Chief Justice John Roberts’ vote may have been up for grabs, Roberts dealt a potential blow to those hopes by suggesting he saw a difference between this case and a previous Supreme Court case that struck down state anti-sodomy laws. That case, he said, was about government intrusion, while the current one before the court was about what a state must approve.
Tuesday’s landmark case came after the court in recent years passed on several obvious opportunities to explicitly weigh in on the issue, even forcing recognition of gay marriage in some states through its inaction. The reluctance led many observers to think the court was content to let gay marriage advance.
But along with the justices’ ruling, what remains to be seen are the scope and legal rationale of the majority opinion. A broad decision for either side could have an impact on other gay rights battles, though any discussion Tuesday about the breadth of a potential ruling was brief.
Kennedy questioned U.S. Solicitor General Donald Verrilli, arguing in support of the plaintiffs, why the U.S. government’s brief in the case focused on an equal protection argument – meaning that state marriage bans discriminate against gays and lesbians on the basis of sexual orientation. In general, the justices seemed more amenable to an argument resting on the 14th Amendment’s due process clause, which would imply that marriage is a fundamental right afforded to everyone, gay or straight.
In the pause before Verrilli’s allotted time, a protester began shouting from the back of the courtroom that gay marriage was an “abomination” and supporters would “burn in hell.” With the outburst coming after a half an hour of intense legal wrangling, Justice Antonin Scalia called the disruption “refreshing, actually.”
A decision in the case is expected in late June.