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Friday, December 9, 2016

The U.S. Supreme Court heard arguments Tuesday morning in the case of Obergefell v. Hodges, which links together four cases challenging same-sex marriage bans in states that do not recognize the rights of gay couples to marry.

There are two questions at issue: first, whether the states are required to grant equal marriage rights to same-sex couples; and second, whether states are required to recognize legal same-sex marriages performed in other states.

Gay rights advocate Mary L. Bonauto argued the first question on behalf of the petitioners. Former Michigan solicitor general John J. Bursch argued the marriage question on behalf of the four states named as defendants.

Justices questioned petitioners on the changing nature of the institution of marriage. Justice Anthony Kennedy — whose vote is expected to be decisive — in particular, interrogated the solidity of marriage, defined for “millennia” as existing between a man and woman.

“This definition has been with us for millennia,” Kennedy said. “And its very difficult for the Court to say, ‘Oh well, we know better.'”

Justice Ruth Bader Ginsburg reminded the other Justices that the institution of marriage has been changing. For example, it has been transitioning to a more egalitarian partnership rather than a male-dominated one.

Conservative Justices pressed Bonauto on whether the several societies and cultures throughout history had been “irrational” and “invidious” in their limiting the definition of marriage to opposite-sex couples. This led to a discussion of the values of societies that could be seen as supportive of homosexuality, even if they did not recognize their right to marriage, going as far back as Ancient Greece.

When the petitioners (and Justice Sotomayor) pointed out that gays and lesbians had been treated quite poorly in some of those societies, Justice Alito pointed out that Plato had written approvingly of homosexual relations, even thought the Greeks limited marriage to heterosexual couples. (SCOTUSblog)

While Bonauto argued that same-sex couples wished to join the institution of marriage, Chief Justice John Roberts, according to SCOTUSblog, said it was possible that perhaps they were looking to redefine “marriage” rather than join it. He stressed that every definition of the word he had found explicitly indicated that marriage was between a man and a woman.

Justice Samuel Alito raised the issue of polygamy:

Justice Alito raised questions about how the logic of the opinion could exclude a polygamous couple of two men and two women — all of whom were consenting adults and fully aware of what they were getting into (suppose, he said, they were all lawyers). The petitioners answered by pointing out that this would require a far greater disruption to the institution, including questions of divorce and child custody that would be rather fraught. (SCOTUSblog)

Justice Antonin Scalia took a moment to ensure that ministers would retain a right not to perform same-sex marriage on religious grounds:

Scalia asked whether, if petitioners win, a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding. Bonauto answered yes. Scalia pressed the point though, arguing that he could not understand how a state could permit somebody to hold a license to marry people if that person would not exercise the power consistently with the Constitution. After a little more back and forth, Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination. Justice Breyer then chimed in and quoted the First Amendment. Ultimately, Justice Scalia seemed satisfied that a minister could refuse to perform those weddings. (SCOTUSblog)

Security removed a protester from the courtroom shortly after petitioners concluded their first arguments. Reporters in the courthouse indicated that his voice could still be heard echoing through the lobby. On the audio released by the Supreme Court, the man can be heard invoking the Bible and exclaiming, “If you support gay marriage, then you can burn in hell!” and “It’s an abomination to God!”

Justice Scalia said the interruption was “rather refreshing, actually,” inspiring laughter in the courtroom.

For the second question (the issue of recognition), Washington, D.C., attorney Douglas Hallward-Driemeier argued for the petitioners; Joseph L. Whalen, associate solicitor general for Tennessee, argued for the states.

After arguments for the recognition issue concluded, SCOTUSblog indicated that the general consensus was that the Court’s answer to the first question will render the second irrelevant. Either the Court will require states to perform same-sex marriages, sidestepping the need for couples to have their out-of-state marriage recognized, or, by upholding a state’s right to deny same-sex marriage, the decision will provide those states with justification sufficient to deny recognition.

Pundits speculated that a compromise that granted recognition but did not require states to perform same-sex marriages was possible. However, Justice Kennedy posed almost no questions in the argument on the second question, signaling that he didn’t think it was important.

Via SCOTUSblog

Photo: Gay Marriage USA via Facebook

This post has been updated.

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