The historic oral arguments before the U.S. Supreme Court on pending marriage cases involved tough questioning for attorneys on both sides of the litigation.
Forecasting the way the court will rule on the cases challenging marriage bans in Michigan, Ohio, Kentucky and Tennessee based on the two-and-a-half hour arguments is difficult because key members of the bench — Chief Justice John Roberts and Associate Justice Anthony Kennedy — wouldn’t give a clear signal of their views.
Kennedy, who wrote several gay rights cases for the Supreme Court, including the 2013 decision against the Defense of Marriage Act, expressed a weariness about a decision instituting the right to gay nuptials across the country.
“This definition has been with us for millennia, and it’s very difficult for the court to say we know better,” Kennedy said.
But Kennedy also offered a contrasting view when John Bursch, the Michigan attorney defending a state’s right to refuse marriage licenses to same-sex couples, delivered his arguments.
Bursch referenced the number of children being born out of wedlock, saying since 1970, the out-of-wedlock birth rate has gone from 10 percent to 40 percent. Kennedy shot back, insisting that statistic — instead of proving the attorney’s point —”cuts quite against” a ban on same-sex marriage.
“Under your view, it would be very difficult for same-sex couples to adopt these children,” Kennedy said.
In a discussion about the benefits of marriage, Kennedy also spoke about same-sex couples wanting access to the institution because it has a “noble purpose” and is a “dignity that can be fulfilled.”
Despite his varying comments, Kennedy has a reputation of being a champion of gay rights during his decades on the bench. It’s hard to see how he would depart from previous rulings to join a decision upholding state bans on same-sex marriage.
Roberts, whom some observers see as a potential swing vote in the case, undercut the image of his being sympathetic to same-sex couples early on during his questioning of Mary Bonauto, civil rights director of the New England-based Gay & Lesbian Advocates & Defenders. She argued states shouldn’t be allowed to withhold marriage licenses from same-sex couples.
“My question is you’re not seeking to join the institution, you’re seeking to change what the institution is,” Roberts said. “The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.”
But Roberts also raised the possibility that denying marriage licenses to same-sex couples is unconstitutional, asking why the case of a hypothetical couple named Tom and Joe not being able to marry isn’t “a straight-forward question of sexual discrimination.”
Other justices on the court were more consistent with their approaches to same-sex marriage during oral arguments, keeping in tune with their reputations as conservative or liberal justices.
U.S. Associate Justice Antonin Scalia expressed concern about a court decision in favor of same-sex marriage requiring ministers to perform same-sex wedding ceremonies, saying if instead of the courts, the states were allowed to handle the issue, “they could make exemptions.”
The Catholic justice brought up the possibility of a same-sex marriage performed at National Cathedral, which condones such unions, negatively impacting St. Matthews, the D.C. seat of the Catholic Church, which remains opposed to same-sex marriage.
Although Bonauto insisted these clergy would continue to have a right to refuse same-sex marriage no matter what the court ruled, Scalia was unmoved.
“If it’s a state law, you can make these exemptions, when it’s a constitutional requirement, I don’t see how you can,” Scalia said.
In response, U.S. Associate Justice Elena Kagan said under current law many rabbis in the Jewish faith don’t marry Jews to non-Jews, but are still able to fulfill their constitutional requirements.
Associate Justice Samuel Alito asked questions about how the court could require states to marry same-sex couples, but continue to deny polygamous marriages or the relationship between two siblings as a marriage.
Alito also noted that other societies, including ancient Greece, condoned homosexuality, yet still saw fit to keep marriage as a union between one man, one woman.
“People like Plato wrote in favor of that, did he not?” Alito asked.
On the other hand, Associate Justice Stephen Breyer noted that states allow marriage for many groups of people, including couples who both have children and don’t want children, but these laws seems to make an exception.
“But there is one group of people whom they won’t open marriage to, so they have no possibility to participate in that fundamental liberty,” Breyer said. “That is people of the same sex who wish to marry. And so we ask, why? And the answer we get is, well, people have always done it. You know, you could have answered that one the same way we talk about racial segregation.”
Associate Justice Ruth Bader Ginsburg made the case that same-sex marriage is possible now because of the evolving understanding of the institution.
“There was a change in the institution of marriage to make it egalitarian when it wasn’t
egalitarian,” Ginsburg said. “And same-sex unions wouldn’t fit into what marriage was once.”
Just after Bonauto completed her oral arguments, a protester emerged at the entrance of the courtroom and began shouting anti-gay views, including “homosexuality is an abomination.”
As the protester was being taken away, Scalia remarked, “rather refreshing.” It’s wasn’t clear whether Scalia was referring to the substance of the protester’s words or his interruption of legal arguments.
Bonauto argued to justices that making marriage “off limits to gay people as a class” is an affront to the promise of equal dignity under the Constitution.
“It’s not about the courts versus the state,” Bonauto said. “It’s about individuals making the choice to marry.”
Also speaking in favor of allowing same-sex couples to marry was U.S. Solicitor General Donald Verrilli, who said if the court were to continue to allow a patchwork of marriage laws across the country, it would amount to racial segregation laws before the Civil Rights movement of the 1960s.
“I don’t know why we’d want to repeat that history,” Verrilli said.
Verrilli concluded his arguments by saying continuing to deny same-sex couples access to marriage is “simply untenable” and that they “deserve protections under our laws and they deserve it now.”
Bursch, in addition to making the case the state should be allowed to ban same-sex marriage because marriage and procreation are intertwined, also urged the court to defer to the legislative process.
“Taking the issue away from the people will have dramatic impact on the democratic process,” Bursch said.
Besides discussing whether states are permitted to withhold marriage licenses from same-sex couples, the court examined whether states have a right to refuse to recognize out-of-state same-sex marriages.
Tennessee Associate Solicitor General Joseph Whalen insisted that the 14th Amendment doesn’t require a state to recognize out-of-state same-sex unions.
“As soon as states were confronted with the reality that some states were going to redefine marriage or expand the definition of marriage to include same-sex couples for the first time, then it’s unsurprising that they would determine, in keeping with their own laws, that they would not recognize those other states’ marriages in Tennessee,” Whalen said.
Asked by Kagan whether if the states lose on the licensing question, they would also lose on the recognition question, Whalen replied, “Yes.”
Arguing on behalf of requiring states to recognize out-of-state same-sex marriages was Douglas Hallward-Driemeier, an attorney with the global law firm Ropes & Gray LLP.
“A state should not be allowed to effectively dissolve that marriage without sufficient justification to do so,” Hallward-Driemeier said.
In his conclusion, Hallward-Driemeier invoked the stories of his clients, including Jim Obergefell, the Ohio widower who’s seeking to ensure his name remains on his late spouse’s death certificate.
“States have no legitimate reason for denying him that last fact regarding his life,” Hallward-Driemeier said.