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What Ted Cruz Got Wrong About Gay Marriage And The Supreme Court

Anticipating action by the Supreme Court's right-wing majority, Senator Ted Cruz last week said the 2015 Supreme Court decision that legalized same-sex marriage nationwide was “clearly wrong.”

Asked about the landmark case, Obergefell v. Hodges, in a video posted to YouTube from his podcast, he claimed, “Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history,” he claimed.

For many, his comments come as no surprise. In his concurring decision on Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas seemed to put a target on the landmark LGBTQ+ case, claiming that the court “should reconsider” its decision in Obergefell.

So Cruz’s comments seem to be merely doubling down on Clarence Thomas’ threat to same-sex marriage. “Marriage was always an issue that was left to the states,” said Cruz. He went further, saying that the Obergefell decision “was the court overreaching.”

But he’s wrong. The United States Congress has passed federal legislation regulating marriage previously, and the Supreme Court has decided cases enforcing those laws over the past “two centuries of our nation’s history.” As early as 1862, Congress passed the Morrill Anti-Bigamy Act, which prevented a person from being married to more than one individual at a time, later amended and strengthened by the Edmunds Anti-Polygamy Act 1882.

Both laws were later upheld by the Supreme Court in Reynolds v. United States (1879) and Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States (1890). Congress also passed the Defense of Marriage Act in 1996, defining a marriage as a union between one man and one woman, which was ultimately struck down by the Court’s decision in Obergefell.

The majority opinion in Obergefell largely rested on precedent from previous cases, including the seminal civil rights case Loving v. Virginia (1967), which struck down laws that made interracial marriage illegal. The court echoed the words of Loving in its opinion on Obergefell, claiming that marriage, and the freedom to choose one’s spouse, is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Consequently, the court concluded that “the right to marry is a fundamental right inherent in the liberty of the person, and…couples of the same-sex may not be deprived of that right and that liberty.”

Given the connection between the rights of interracial couples and same-sex to marry, Justice Thomas’ desire to revisit the court’s decision on Obergefell is odd. Would a reconsideration of the principles undergirding the Obergefell decision force the Court to reconsider its ruling in Loving? Given that Justice Thomas, only the second African American to serve on the Supreme Court, is married to a white woman, perhaps he should not throw stones.

To avoid directly stating his own aversion to same-sex relationships, Cruz instead complained that the Court prematurely truncated the democratic process. “Before Obergefell, some states were moving to allow gay marriage, other states were moving to allow civil partnerships. There were different standards that the states were adopting. And had the court not ruled in Obergefell, the democratic process would have continued to operate,” Cruz claimed. “In Obergefell, the court said, 'No, we know better than you guys do, and now every state must, sanction and permit gay marriage.'”

Cruz’s words are oddly reminiscent of the "moderates" in Martin Luther King’s Letter from Birmingham Jail, who urged civil rights activists to “wait” for more gradual change. Yet the Court anticipated and answered this objection in its decision. In his majority opinion for the Court, Justice Anthony Kennedy cited Schuette v. BAMN, noting that “when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision-making. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.”

Perhaps Cruz and Thomas’ opposition to the expansion of human rights is not because of its timing, but because, as Dr. King observed, “privileged groups seldom give up their privileges voluntarily.”

Retired Justice Kennedy’s Son Helped Trump With Huge Deutsche Bank Loans

Reprinted with permission from Alternet

During Justice Anthony Kennedy's 31 years on the U.S. Supreme Court, liberals and progressives had a love/hate relationship with the Reagan appointee — praising him for his rulings on gay rights and abortion rights while slamming his economic rulings as beneficial to unchecked corporate power. And those who viewed Kennedy as being too quick to side with big business are likely to have similar views on his son, Justin Kennedy, who according to the New York Times, has been very close to Trumpworld and helped Donald Trump secure almost $700 million in loans for a real estate project in Chicago.

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This Supreme Court Disaster Didn’t Have To Happen

What once may have sounded like a distant and wonkish abstraction —  namely, the nature of future nominees to the United States Supreme Court — is now upon us as a rapidly worsening catastrophe.

Within the past few days, owing to the seat stolen by Senate Republicans for Neil Gorsuch in 2017, the high court has upheld Donald Trump’s discriminatory travel ban, enabled the deception of desperate women by anti-choice “counseling clinics,” and inflicted a stunning blow from which the American labor movement may never recover.

And yesterday Justice Anthony Kennedy sent a letter to the White House announcing his plan to retire from the court on July 31, which will deliver another seat to a Trump appointee. What that might portend for civil liberties, human rights, consumer protection, industrial regulation, and decent government is difficult to contemplate. But suddenly the most outlandish dreams of the far right are much closer to being realized.

Despite his reputation as a “moderate,” Kennedy was in truth a very bad, mostly right-wing judge and a dim intellect, as his notoriously senseless Citizens United opinion proved. His record on the court was so bad, observes the astute judicial analyst Ian Millhiser, that even a Trump justice may not do much worse. Those who believed that Kennedy wouldn’t surrender his seat to this dangerous executive overestimated his character.

The endless reign of injustice that stretches before us is hardly what most Americans want or deserve, at least as measured by the 2016 election results. If that presidential election was “a referendum on the future of the court and thus the country,” as Trumpist pundit Hugh Hewitt crowed in The Washington Post, the Republicans lost by more than three million votes. And yet they won control of the high court and much of the judiciary for perhaps a generation to come.

As you imagine a nation without reproductive rights, voting protections, or environmental laws, are you looking for somebody to thank? It isn’t hard to compose a list of those responsible for the present disaster, from the ruin of the Supreme Court to the torment of children on our borders and a thousand other disasters large and small. Such a list could include Hillary Clinton herself and her clueless campaign staff. But at least the Democratic nominee tried to warn us about the consequences of electing Trump, including his potential perversion of the courts.

Even more culpable than Clinton, perhaps, is anyone who told voters that she didn’t deserve their support; anyone who complained that she was the same as Donald Trump or even worse; anyone who bloviated that Democrats are no different from Republicans; anyone who urged a ballot for Jill Stein as a way to advance progressive politics and achieve moral hygiene; and anyone who said that electing Trump might even “bring on the revolution.” Trump’s tiny, almost accidental margin in the Electoral College can be directly attributed to voters who acted out their “protest.”

It is now clear that we will endure the consequences of their stupidity for a long time, as will our children. We all ought to have known better after the 2000 election, when a few handfuls of ‘protest’ ballots (and a crooked Supreme Court majority) smoothed the disastrous Electoral College victory of George W. Bush. Will we learn the lesson this time?

What’s At Stake In Supreme Court Gerrymander Decision

On Tuesday, the U.S. Supreme Court heard one of the most politically consequential cases in years, to decide whether partisan gerrymandering, or having elected politicians choose which voters do and don’t cast ballots in specific U.S. House and state legislative elections, is constitutional.

If you want to know why the GOP has not only controlled the House but has supermajorities in states that should be politically purple, such as North Carolina and Georgia, the answer is extreme partisan gerrymandering.

If you want to know why House Speaker Paul Ryan cannot control his most right-wing members, as exemplified by the House Freedom Caucus (which didn’t think Ryan’s bill gutting the Affordable Care Act went far enough), the answer is extreme partisan gerrymandering.

If you want to know why the Democrats face such a steep climb in 2018 to retake the House (because they need 24 seats and there aren’t dozens of competitive races), the answer is extreme partisan gerrymandering.

If you want to know why so many red states are passing voter suppression and anti-abortion laws, blocking LGBTQ rights, and sued to block Obamacare and climate change-related environmental protection laws, the answer is extreme partisan gerrymandering.

“Through redistricting, Republicans have built themselves a perhaps unbreakable majority in the House,” Ryan Lizza, the New Yorker’s Washington correspondent, wrote in 2013 about the House Freedom Caucus. “But it has come at a cost of both party discipline and national popularity. Nowadays, a Sunday-school teacher can defeat the will of the Speaker of the House.”

The Supreme Court’s case raising whether extreme partisan redistricting is constitutional comes from Wisconsin. There, despite only 23,000 votes separating Donald Trump and Hillary Clinton in November 2016’s vote, Republicans hold two-thirds of the seats in its state legislature and House delegation. How did they get that power? It’s a pattern also seen in Michigan, Ohio, Florida, Texas, Georgia, North Carolina and Virginia—all states tipping the balance in national elections in recent years.

The answer is by segregating reliable Republican and Democratic voters, so Republicans could win on Election Day by smaller percentages than what Democrats would win by in their strongholds. That comes from drawing election districts so there were more reliable Republican voters in more districts, and crowding Democrats into fewer districts in their states.

Political district maps are redrawn after the once-a-decade federal Census. The result of the GOP’s extreme partisan mapmaking in 2011 has been its lock on the House, as well as on the red states that subsequently fought all things Obama and passed anti-abortion laws. These states have gone on to adopt the GOP voter suppression catalog to block Democratic voters, including tougher voter ID requirements to get a ballot, ending Election Day registration and voting, purging infrequent but otherwise legal voters, ending early voting, pre-registration of teens, etc.

In 2010 and 2011, Obama and the Democrats weren’t focused on blocking extreme redistricting and underestimated the GOP response to Obama and the Democrats’ 2008 landslide, which became one of their biggest errors. While Democrats today are waving the “never again” flag, their best hope for returning the political system to one based on competitive elections lies with the Supreme Court—which is hardly worth banking on. The Court has never invalidated political maps for arch partisanship; they only invalidate maps that are racially based to disenfranchise non-white voters.

The best way to understand how extreme redistricting works, and why it is so impactful comes from a Supreme Court decision this past spring, where the Court—before Judge Neil Gorsuch was seated—ruled that North Carolina’s congressional maps were illegal racial gerrymanders. In that decision, the Court’s majority noted that most Republican House members had been elected with 56 percent of the vote, while the state’s few elected Democrats won their seats with nearly 70 percent of the vote in their districts.

That figure—56 percent—is key. It’s in synch with what many election data analysts say is the built-in starting line advantage that the GOP achieved via redistricting: a 6-point head start. Needless to say, that is not all the GOP in these red states has done to disenfranchise Democrats. Stricter voter ID pre-empts another 2-to-3 percent of likely Democrats, according to academics, just as making voter registration tougher and narrowing voting options, like early voting, shaves off more fractions of a percent to tilt likely outcomes.

The Wisconsin case that prompted the Supreme Court review came after a lower court ruled that the maps drawn by its GOP in 2011 created so many wasted votes by Democrats that Wisconsin elections were anti-democratic. The Wisconsin GOP appealed and the high Court took the case.

What’s likely to unfold on Tuesday in the Supreme Court are exceptionally technical arguments about how to measure extreme partisanship and unfair, uncompetitive elections. Several years ago, Justice Anthony Kennedy, in another redistricting case, wrote that he wished that there was an objective standard. That prompted the legal team challenging Wisconsin’s maps to create a metric based on wasted votes.

But in the Court’s ruling last spring on North Carolina’s unconstitutional racial gerrymander—without Gorsuch—the Republican-appointed justices, including Kennedy, said in a dissent that partisanship was a part of human nature and politics. It might be odious, they said, but they were averse to regulating it. Whether that view holds is the critical question behind the Tuesday hearing at the Supreme Court.

But no matter what emerges, all Americans should note what extreme gerrymandering has done to the nation’s political culture and process.

It has ended competitive elections, boosted the most extreme Republicans in the South and Midwest, and left the nation split in two—with Democratic-run states on the coasts and vast red middle America. In numerous states, like Florida, there are cities with progressive mayors while legislatures and congressional delegations are deep red, and fervent political opponents.

Ultimately, extreme gerrymandering has undermined representative government, shrunk the role of citizens and empowered extremists—whether President Trump or the House Freedom Caucus. It’s allowed Republicans to create a structural starting-line advantage of nearly 10 points, regardless of candidates and issues. That has produced a nation where Democrats might win the popular vote but don’t win political power.

Abortions, With No Regrets

It is as disturbing as it is inspiring, this response from so many women to publicly share their abortion stories so that members of the U.S. Supreme Court might read them.

Why must women in America continue to reveal to strangers the most intimate details of our lives to preserve our constitutional right to privacy?

Is there even one instance in which men are asked to do this? We women know the answer to that. We don’t dwell. On we go with our busy lives. Yet another wondrous thing about women, this ability to rise above this hateful battle of right-wing extremists. They are everywhere, it seems. Outside our clinics. Inside our churches. Holding too many seats in state legislatures and Congress.

On Wednesday, the court heard arguments regarding a Texas law so restrictive that it could reduce the number of abortion clinics in that state from 40 to about 10. More than 100 women filed supporting briefs full of stories about the abortions that made it possible for them — and often their families — to live safe and productive lives.

The briefs are an appeal to Justice Anthony Kennedy. He is the one with the power, the man who will determine whether women will be able to control their own bodies.

We have reason to worry.

As The New York Times reported, in a 2007 majority opinion, Kennedy claimed that many women regret their decision to have abortions. He depicted them as depressed, the victims of plummeting self-esteem. There is no evidence to support this.

So one woman after another spilled the most private details of their lives in court briefs to educate him. They have no regrets, and they spell out the reasons for that.

Kate Banfield found out in 1987 that she was pregnant. She was a 19-year-old freshman at Stanford University, home for the summer and working as a waitress. She had been raised Catholic and was worried that her parents would judge her.

From the brief: “She recently informed her father of her abortion for the first time, and her public participation in this brief. He said that while he may not have agreed with her decision at the time, he acknowledges that it was her decision to make and in retrospect he definitely agrees with the choice she made for herself.”

This is such a familiar story. A person is opposed to abortion — until he or she is not. Until the pregnancy that will derail a career, a family, a future. Until the fetus that is fatally deformed. Until the cost of a birth is the end of a mother’s life.

In all the years I’ve interviewed abortion providers, never once have I heard them utter a word of judgment for such people.

“We can think we’re so certain of right and wrong,” a clinic counselor once told me. “And then our lives intervene.”

Banfield is married with three children and has helped hundreds of other children as a teacher and advocate.

She does not regret her abortion.

In 1966, anthropologist Leni Silverstein had just graduated from the University of Chicago when she got pregnant, despite using a diaphragm. Abortion was illegal in Illinois, but through a friend of a friend, she found an underground abortion provider in Chicago.

“Leni was incredibly scared,” the brief reads. “She was told she would have to meet an unidentified person in downtown Chicago. She had no idea where she would get the abortion, or who would perform it. She knew her safety and reproductive future were at risk. When she arrived at the appointed meeting place, she was blindfolded and driven to an undisclosed location. She believes it was an apartment somewhere in Chicago.”

She does not regret her abortion.

Jo Baxter was a college junior when she had an abortion in 1965. She had already seen a 17-year-old relative’s life unravel after she became pregnant and dropped out of college to marry and carry the pregnancy to term. The woman never returned to college.

Baxter is married with two children. She is on the board of a violence prevention center and, for many years, also served on the board of a primary health care center for the uninsured.

She does not regret her abortion.

She has no interest in being cast as a victim. In a moment of crisis, she took control of her body — and her life.

It’s what women do.

Connie Schultz is a Pulitzer Prize-winning columnist and professional in residence at Kent State University’s school of journalism. She is the author of two books, including “…and His Lovely Wife,” which chronicled the successful race of her husband, Sherrod Brown, for the U.S. Senate. To find out more about Connie Schultz ( and read her past columns, please visit the Creators Syndicate Web page at


Photo: President and CEO of Whole Women’s Health Amy Hagstrom Miller (L) holds up her fist as she descends the steps of the U.S. Supreme Court with President and CEO of the Center for Reproductive Rights Nancy Northup after the court took up a major abortion case focusing on whether a Texas law that imposes strict regulations on abortion doctors and clinic buildings interferes with the constitutional right of a woman to end her pregnancy in Washington March 2, 2016.  REUTERS/Kevin Lamarque

Unhappy Anniversary: How Anthony Kennedy Flooded Democracy With ‘Sewer Money’

On today’s anniversary of the Citizens United decision, which exposed American democracy to increasing domination by the country’s very richest and most reactionary figures – the modern heirs to those “malefactors of great wealth” condemned by the great Republican Theodore Roosevelt – it is worth recalling the false promise made by the justice who wrote the majority opinion in that case.

Justice Anthony Kennedy masterminded the Supreme Court’s January 21, 2010 decision to undo a century of public-interest regulation of campaign expenditures in the name of “free speech.” He had every reason to know how damaging to democratic values and public integrity that decision would prove to be.

Once billed as a “moderate conservative,” Kennedy is a libertarian former corporate lobbyist from Sacramento, who toiled in his father’s scandal-ridden lobbying law firm, “influencing” California legislators, before he ascended to the bench with the help of his friend Ronald Reagan.

While guiding Citizens United through the court on behalf of the Republican Party’s billionaire overseers, it was Kennedy who came up with a decorative fig leaf of justification:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

 As Jane Mayer’s superb new book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right reveals in excruciating but fascinating detail, Kennedy’s assertion about the Internet insuring disclosure and accountability was nothing but a little heap of happy horse-shit. “Independent” expenditures from super-rich right-wing donors have overwhelmed the opponents of their chosen candidates, promoting a durable Republican takeover of Congress — often through the deployment of false advertising and false-flag organizations.

Late last year, Kennedy confessed that his vaunted “transparency” is “not working the way it should,” a feeble excuse since he had every reason to know from the beginning that his professed expectation of “prompt disclosure” of all political donations was absurdly unrealistic.

The Citizens United debacle led directly to the Republican takeover of the Senate as well as the House. Last week, the Brennan Center for Justice released a new study showing that “dark money” – that is, donations whose origin remains secret from news organizations and voters – has more than doubled in Senate races during the past six years, from $105 million to $226 million in 2014.

During the past three election cycles, outside groups spent about $1 billion total on Senate races, of which $485 million came from undisclosed sources. In the 11 most competitive Senate races in 2014, almost 60 percent of the spending by “independent” groups came from those murky places, and the winners of those races benefited from $171 million of such spending.

In elections gone by, when anonymous smear leaflets would appear in local races — funded by nobody knew whom — political operatives would shake their heads and mutter about “sewer money.”

Today we can thank Anthony Kennedy, who was either poorly informed or willfully ignorant, for turning American democracy into a stinking open sewer.

What a legacy.

Conservative U.S. Justices Prepared To Deliver Blow To Unions

By Lawrence Hurley

WASHINGTON (Reuters) — Conservative U.S. Supreme Court justices on Monday voiced support for a legal challenge that could erode organized labor’s clout by depriving public-employee unions of millions of dollars in fees that many state laws force non-union members to pay.

Justices John Roberts, Anthony Kennedy and Antonin Scalia indicated during an 80-minute oral argument that they could join the nine-member court’s two other conservatives to overturn a 1977 high court precedent allowing the fees, a vital source of funds for the unions.

Legal experts had thought Scalia might be sympathetic to the union position due to prior votes and statements on the subject, but his questions signaled support for the 10 non-union California public school teachers who challenged the fees.

U.S. conservatives have long sought to curb the influence of unions representing public employees like police, firefighters and teachers that often support the Democratic Party and liberal causes.

A ruling allowing non-union workers to stop paying “agency fees” equivalent to union dues, currently mandatory under laws in about half the 50 states including California, could strip public sector unions of millions of dollars, reducing their income and political power.

About 5 million public sector employees are subject to union contracts that include mandatory fee provisions, according to the National Right to Work Legal Defense Foundation, which backs the non-union teachers.

Unions worry that a ruling throwing out the fees would give workers less incentive to join because they would get all the benefits of collective bargaining without having to pay for it.

Chief Justice Roberts and Kennedy appeared unsympathetic to the California Teachers Association’s argument that non-members would become “free-riders” if not required to pay the fees to fund collective bargaining activities.

“The union basically is making these teachers ‘compelled riders’ for issues on which they strongly disagree,” Kennedy said.

Roberts said the majority of the California teachers union’s members appeared to back collective bargaining, making the “free-riders” concern “really insignificant.”

The teachers who filed the lawsuit in 2013 are asking the justices to overturn the 1977 Abood v. Detroit Board of Education Supreme Court ruling that allowed these unions to collect fees from workers who are not members as long as the money is not spent on political activities.

California teachers generally pay around $1,000 annually in union dues. Non-members can opt out of paying for union political activities, which means they pay around $600 a year in mandatory fees covering collective bargaining.

Several justices hinted at the difficulties of separating out political issues in a way that would not infringe upon the free-speech rights under the U.S. Constitution of non-members who disagree with the union.

“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” Scalia said.


Roberts and Scalia seemed skeptical that unions would collapse without fees from non-union employees, in part because such fees are already banned in 25 states that have what is known as “right-to-work” laws. In those states, unions still represent workers but membership rates are lower.

Federal employee unions also cannot collect such fees.

Even when the union’s lawyer, David Frederick, sought to explain routine issues on which the union negotiates such as teacher lunch breaks, he faced hostile questions.

Kennedy said if the union believes it is doing a sound job negotiating over such daily concerns, “the union can convince people to join.”

The court’s liberals defended the current practice and said justices usually think twice before overturning long-standing precedents.

“You come here with a heavy burden,” Justice Elena Kagan told the teachers’ lawyer, Michael Carvin.

A ruling favoring the non-union teachers would be a blow to organized labor because unionized teachers and other civil servants in states without “right-to-work” laws comprise its main power base. Public sector workers are almost six times more likely to belong to a union than those in the private sector.

The dispute pits non-union teachers and the Christian Educators Association International against the California Teachers Association, an influential union with 325,000 members. The conservative Center for Individual Rights sued on behalf of lead plaintiff Rebecca Friedrichs, an elementary school teacher in Anaheim, and the other teachers.

The union noted that California law requires it to represent all workers when negotiating with the state, regardless of whether they are members.

A ruling is due by the end of June.

(Reporting by Lawrence Hurley; Editing by Will Dunham)

Photo: A view of the U.S. Supreme Court building is seen in Washington, October 13, 2015. REUTERS/Jonathan Ernst

U.S. Supreme Court Hears First Argument In Landmark Gay Rights Case

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.