WASHINGTON — In historic proceedings Tuesday, a divided Supreme Court grappled with the question of whether gay and lesbian couples have a fundamental constitutional right to marry that trumps state laws banning same-sex marriage.
The nine justices fell along mostly predictable idealogical lines, with the inscrutable Justice Anthony Kennedy seeming the most in play, as had been expected from the outset. The four liberal justices seemed clearly inclined to rule that the bans on gay marriage were unconstitutional on equal protection grounds. Elena Kagan and Sonia Sotomayor were particularly vocal during the questioning. Samuel Alito was the most vocal of the conservative justices, although Chief Justice Roberts and Antonin Scalia were consistently engaged. As is his custom, Clarence Thomas did not speak during the oral arguments.
The case, Obergefell v. Hodges, came to the Supreme Court from the 6th Circuit Court of Appeals, which upheld state bans on gay marriage, in Ohio, Tennessee, Kentucky, and Michigan.
The plaintiffs in the cases before the court represented a cross section of Americans aversely affected by state gay marriage bans, including: gay couples banned from legally marrying; a widowed gay man whose Maryland marriage is not recognized in Ohio; gay couples who aren’t both legally recognized as the parents of artificially conceived children; and gay parents of an adopted child who are not both legally recognized as adoptive parents.
Early in the proceedings, the conservative justices homed in on the definition of marriage and how long the term had been widely meant to mean marriage between people of the opposite sex.
“How do you account for the fact that, as far as I’m aware, 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?,” Alito asked Mary Bonauto, the attorney representing those challenging the gay marriage bans.
Responding to that line of questioning, Bonauto said, “I do believe that times can blind and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded.”
Kennedy, too, seemed troubled by how new the concept of same-sex marriage is. He noted that the length of time between Brown v. Board of Education, which outlawed racial segregation, and the Loving case which outlawed bans on interracial marriage, was about the same length of time as between the Lawrence v. Texas, where the court outlawed anti-sodomy laws and the current case.
“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’s very difficult for the Court to say, ‘Oh, well, we know better.”
But while that was not the kind of signal gay rights advocates were looking for from Kennedy, he made a smattering of other remarks during the proceedings that suggested he remained open to the same-sex marriage argument. At one point, he mirrored the argument that gay couples were looking for the same kind of dignity that marriage bestows on opposite sex couples and he rejected the suggestion that gay couples can’t fully bond with their children. “You had some premise that only opposite-sex couples can have a bonding with the child,” he told counsel for the states. “That was very interesting, but it’s just a wrong premise.”
For his part, Scalia framed the decision before the court as who gets to decide whether same-sex marriage should be legal. “The issue, of course, is not whether there should be same-sex marriage, but who should decide the point. … And you’re you’re asking us to decide it for this society when no other society until 2001 ever had it.”
In pressing the challengers, Alito frequently returned to a line of questioning about what, if any limits would exist to states regulating marriage if same-sex marriage were allowed. What if two women and two men wanted to marry? Alito also wondered more than once why, by the challengers’ logic, the state wouldn’t have the same interest in conveying special benefits to unmarried siblings living together? The questions were not without legal significance, but seemed clearly designed to provoke.
Roberts and Scalia both had misgivings about the intrusion a ruling enshrining same-sex marriage as a constitutional right would have on those opposed on religious grounds.
“Would a religious school that has married housing be required to afford such housing to same-sex couples?” Roberts asked Solicitor General Donald Verrilli.
Scalia wondered aloud about ministers being required to marry same-sex couples. “I don’t see how you could possibly allow that minister to say, I will only marry a man and a woman,” Scalia said. “I will not marry two men. … I don’t see any answer to that. I really don’t.”
At one point barely 30 minutes into the two and a half hour arguments, a man in the audience rose and began shouting. It was difficult to make out exactly what he was yelling as security hustled him out of the courtroom but he did make a reference to the Bible and shouted, “You shall burn in hell!” Shouts echoed from outside the courtroom for another 10 minutes after the man was removed.
Once things settled down, Scalia observed, “It was rather refreshing, actually.” The audience laughed.
The analysis for the conservative justices is fairly straightforward. Marriage may be a fundamental right, but marriage has always been defined as between members of the opposite sex and therefore same-sex marriage is not a fundamental right. John J. Bursch, the counsel for the states defending their same-sex marriage bans, was happy to go along with that analysis but also tried to win over the liberal justices on their own terms: by making the equal protection argument. In that, he often struggled.
To prevail, counsel had to show that the states had a compelling interest in prohibiting gays and lesbians from marrying. The justices repeatedly pressed Bursch to explain what that reason was. The state’s interest is in ensuring that children are linked to both of their biological parents. That set off an extended discussion on how adoptions are treated under the law, forcing Bursch at one point to declare, “Let me be clear. We love adoption. Adoptive parents are heroes.”
The liberal justices pressed Bursch on how same-sex marriage adversely affected traditional marriages. And here, Bursch made the argument that same-sex marriage would send a message that marriage was only about the adults and not about the children. As a result, fewer people would choose traditional marriage and more children would be born out of wedlock.
“Because if you’re changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids,” Bursch said.
The court devoted 90 minutes of oral arguments to the question of whether the constitution confers a right for gays and lesbians to marry that state bans on same-sex marriage would violate. Then the court spent 60 minutes on the question of whether the Constitution requires states that do not allow same-sex marriage to recognize the legality of same-sex marriages in states where they are legal.
Gay rights advocates are keenly focused on the first question. Winning on the first question would render the second question moot. Prevailing on the second question would be a disappointing consolation prize, though legally and practically it would still be significant.
The justices split along similar lines on the second question, with Sotomayor particularly skeptical that there was good legal precedent for allowing states to not recognize same-sex marriages performed in other states. But Scalia seemed not entirely convinced that states could ignore marriages legal in other states, and Alito suggested there might be some legal middle ground.
“So the question is whether there could be something in between,” Alito offered. “So there there’s a sufficient reason for the state to say, we’re not going to grant these licenses ourselves, but not a strong enough reason for us not to recognize a marriage performed out of state. I suppose that’s possible, isn’t it?”
In the two years since the last major gay rights decision to come before the court, the country has undergone an dramatic transformation legally, politically, and culturally.
Same-sex marriage is currently legal in some 36 states, but a Supreme Court ruling against marriage equality could reinstate bans in several of those states. Gays and lesbians in general, and same-sex married couples in particular, have seen a deeper and wider acceptance in society. Republicans jockeying for the GOP presidential nomination in 2016, all of whom oppose marriage equality, have struggled to keep up with the broader societal shift. Opposition to gay marriage, once a clarion call to conservative culture warriors, is now often accompanied by softer language and disclaimers of mean-spiritedness.
But not always.
A protestor with a loud speaker stood among protestors on the sidewalk in front of the Supreme Court on the crisp, clear April morning of the hearing, chastising “fornicators” and “masturbators”. He seemed to revel in the crowd’s reaction to his more salacious protestations. “When you put that penis in that anus, that’s a choice,” he cried.
The court previously declined to take up gay marriage. In the view of most observers, it was because there was no split on the issue among the circuit courts. Justice Ruth Bader Ginsburg suggested as much in a speech last year. But the 6th Circuit’s ruling upholding state gay marriage bans created that split in authority among the lower appeals courts and prompted the Supreme Court to weigh in.
The court will decide on the constitutionality of same-sex marriage just two years after it declined to go so far as finding a constitutional right to marry, although Justice Antonin Scalia warned at the time that the court’s decision all but guaranteed that marriage equality would soon be the law of the land. In the ensuing years, same-sex marriage has swept the country, along with a sea change in American attitudes toward gay rights.
It was only five years ago that there was tittering about whether the unmarried and childless Elena Kagan, President Obama’s then-nominee to the high court, was gay. The White House and Kagan supporters felt the need to knock down those rumors. Similar whispering had followed Justice David Souter, a lifelong bachelor who retired from the court in 2009. Today those seem like echoes of a very distant, and different, time.
Few observers would have guessed then that the court would be considering whether same-sex marriage is a fundamental constitutional right so soon. In fact, gay rights advocates as recently as late 2012 thought it was premature to press the court for full recognition of marriage equality.
All of the justices, the youngest of whom, Elena Kagan, turned 55 Tuesday, grew up in the time when the notion of equal rights for gay and lesbian Americans was so marginal as to be almost non-existent in the national political dialogue. Gays and lesbians were stigmatized, and often demonized. Gay sex acts constituted criminal conduct even when performed in the privacy of one’s own home as late as 2003, when the Supreme Court in another landmark case, Lawrence v. Texas, declared anti-sodomy laws unconstitutional.
A decision in Obergefell v. Hodges is expected in June.