The Supreme Court Tuesday heard oral arguments in a case that will likely define the future of gay marriage in America and justices appeared split on how they will rule.
Justices wanted to know what it would mean to change the definition of marriage in every state, including those who define it as between a man and a women.
“Would there be any ground to deny a group marriage license?” Justice Samuel Alito asked, if the definition of marriage were broadened.
Chief Justice John Roberts questioned whether the case would seek to change the institution of marriage, not just allow gays to participate in it.
“Every definition that I looked up prior to about a dozen years ago defined marriage as a unity between a man and a woman as husband and wife,” Roberts said. “Obviously, if you succeed, that core definition will no longer be operable.” He said to a lawyer making the case for gay marriage, “You’re not seeking to join the institution, you’re seeking to change what the institution is.”
Justice Anthony Kennedy, who some believe could be the critical swing vote in the case, pointed to the enduring definition of marriage as one between the opposite sexes.
“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.'”
With hundreds of activists for and against gay marriage gathered on the court steps, the nine justices listened to arguments for an unusually lengthy 2 1/2 hours, giving time for those on both sides of the case time to persuade the court on two questions: Whether states are constitutionally required to permit same-sex marriages, and whether states are legally mandated to recognize gay marriages sanctioned in other states.
Mary Bonauto, arguing on behalf of a gay widower from Michigan, argued that states that deny same-sex couples to marry are relegating them to second-tier status.
“The intimate and committed relationships of same-sex couples just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society,” Bonauto told the court. “Yet the legal commitment, responsibility and protection that is marriage is off limits to gay people as a class. The stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”
The case is unusual in that it not only seeks to address two questions instead of one, but it will also consider gay marriage court decisions in Michigan, Ohio, Kentucky and Tennessee, where same-sex marriage bans have been legally challenged.
In addition to Bonuato, United States Solicitor General Donald B. Verrilli was permitted to argue in favor of making gay marriage a constitutional right.
“This is about equal protection,” Verrilli argued. “The justification for excluding gays and lesbians from this institution doesn’t hold up.”
Lawyers in favor of allowing the four states to maintain bans argued that the bans are not a form of discrimination, rather they are aimed at protecting the institution of marriage and families.
Michigan assistant Attorney General John Bursch argued on behalf of the state that allowing gay marriage would weaken the institution and hurt families.
He cited an increase in out-of-wedlock births from 10 percent to 40 percent since 1970.
“If in peoples minds, if marriage and having children have nothing to do with each other, than what do you expect?” Bursch told the justices when asked why gays should be excluded from marriage. “If you change the meaning of marriage over the long haul, it has consequences.”
But Justice Ruth Bader Ginsburg said that marriage had already fundamentally changed over the years, from one that almost solely empowered husbands to today’s mostly egalitarian institution.
“Marriage today is not what it was,” Ginsburg said.
And Justice Elena Kagan pointed out that many gay and lesbian couples adopt children, which she suggested, hardly undermines the institution of marriage.
“More adopted children and more marital households,” Kagan said. “That seems to be a good thing.”
The petitioners in the case are gay couples seeking the right to marry or to have marriages sanctioned in other states recognized.
At one point in the arguments, a protester managed to make it inside the courtroom, disrupting the arguments with loud shouting before being forcibly removed by police.
The activist opposed legalizing gay marriage, warning those who do, “will burn in hell.”
The justices took it well.
“It was rather refreshing, actually,” Justice Antonin Scalia said, eliciting laughter from the courtroom.
More than one hundred amicus briefs have been filed on behalf of both sides in addition to briefs filed by the four states and the petitioners seeking to change the law so that gay marriage is legal in those states.
Verrilli, in a brief filed with the court, argued that the court’s 2013 decision in United States v. Windsor, which made it illegal for the federal government to discriminate against gay marriage, also applies to the bans on gay marriage in the four states.
Many expect the Supreme Court to rule in favor of gay marriage in part because of the Windsor decision requiring the federal government to recognize it.
“Just as governmental recognition of a marriage confers ‘a dignity and status of immense import,'” Verrilli wrote, quoting the Windsor case, “governmental exclusion from the institution of marriage can impose profound emotional and practical hardships on committed couples.”
Among them are April DeBoer and Jayne Rowse, who are seeking to overturn a ruling by a Michigan appeals court upholding the states’s ban on gay marriage. The two women want the right to marry in Michigan, in part to ensure they could legally determine the fate of their children if one or both of them were killed.
In Ohio, James Obergefell, a widowed gay man, and Brittani Henry, a lesbian, want Ohio to recognize their marriages, which took place in Maryland and New York, respectively.
Thirty-seven states have legalized gay marriage, many of them due to court decisions. Another 13 states ban the practice.
Polls show the public is increasingly accepting of same-sex marriage.
A Quinnipiac University poll released Monday found American voters support same-sex marriage by a margin of 58-34 percent. The poll found strong support “from every party, gender and age group except Republicans, who are opposed 59-33 percent, and voters over 55 years old, who support same-sex marriage by a narrow 48-43 percent. ”
