With oral arguments over in Obergefell v. Hodges, we can hope this will be the last time the Supreme Court will have to look at this issue. The case was consolidated by the court with three other same-sex marriage cases challenging both a state’s refusal to recognize same-sex marriages from other jurisdictions and a state’s refusal to license same-sex marriages, or both. The plaintiff’s case was argued by Mary Bonauto, the lawyer for the seven gay and lesbian couples in Massachusetts who in 2003 won their case and made it the first state in the nation to allow same-sex couples to wed. It is fitting she is the attorney of record in this case that could finally declare same-sex marriage legal nationwide.
As oral arguments were made on Tuesday, many went in with high hopes the court will decide both issues at once. The complexity and uncertainty caused when 37 states and the District of Columbia recognize same-sex marriage but those marriages are not recognized in the other 14 states is untenable. The confusion is unacceptable and continues to deprive people of their full civil and human rights.
The court has seemed reluctant to tackle same-sex marriage, as it generally doesn’t like to move ahead of public opinion and developments in states. But now with more than 60 percent of the population supporting same-sex marriage according to recent polls, the court needn’t worry about that.
As oral arguments began, Chief Justice John G. Roberts Jr. said he “had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman, and continued saying to the plaintiffs if you succeed, that definition will not be operable.” He went on to say “You are not seeking to join the institution. You are seeking to change the institution.”
Justice Anthony M. Kennedy also spoke as the advocates for marriage equality made their case. He said, “The definition of marriage has been with us for millennia and it’s very difficult for the court to say, ‘Oh, we know better.” While that statement was disappointing he also said his sense was that “a principal purpose of marriage was to afford dignity to the couples, which is denied to same-sex couples.” At another point in responding to an argument Kennedy said, “Noting that the ‘societal’ or ‘cultural’ definitions of marriage that had lasted millennia were just that, and not necessarily the same as the governmentally sanctioned institution of marriage.” So trying to guess on which side of these issues he will vote is difficult.
Adam Liptak in the New York Times reported, “When the lawyer for the opponents of gay marriage began arguing, Justice Stephen G. Breyer forcefully questioned why states should be able to exclude gay people from marriage. Marriage is open to vast numbers of people, he said, adding that same-sex couples have no possibility to participate in that fundamental liberty. And so we ask why.”
In cases such as this where the conservative and liberal Justices come from such different points of view it is always difficult to anticipate what they will do. The consensus is that Alito, Thomas (the silent justice), Scalia and Roberts will come down on the side saying same-sex marriage is not a constitutional right. Breyer, Sotomayor, Ginsburg and Kagan will vote to say it is. That leaves Justice Kennedy who has been pragmatic in these cases and said in Windsor it was a case of dignity. In this case where he may feel the same, the question will be whether he agrees it is the court’s right to make the decision.
Those who have fought this battle for years think the time has come for it to be decided in our favor. However even if we win the LGBT community must recognize our fight for civil and human rights is not over. You may marry but in nearly half the states the next day you could lose your job and be discriminated against in housing and other areas. Whatever the decision, the fight for our rights must go on.
Peter Rosenstein is a longtime LGBT and Democratic Party activist. He’s a regular contributor to the Blade.