WASHINGTON – The Supreme Court justices largely stuck to their traditional roles on the bench Tuesday during oral argument in the case of Obergefell v. Hodges, one that stands to bring marriage equality to all 50 states. Though a broad victory for same-sex couples seemed almost inevitable going into Tuesday’s hearing, the justices left the outcome far more up in the air than anticipated – leaving both sides of the debate feeling optimistic.
Questions from the conservative justices – Antonin Scalia, Samuel Alito, and Chief Justice John Roberts – focused mainly on tradition and the will of the people, and the potentially negative impact on each should should the high court end same-sex marriage bans nationwide. Common arguments from the liberals – Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer – centered on the fact that the traditional definition of marriage had already changed several times over, and that allowing same-sex couples to participate now would not weaken the institution for anyone else.
At one point during the two and a half hour hearing, an anti-gay marriage protester turned heads as he was escorted out of the building, screaming about burning in hell. But for the most part, all eyes (and ears, for those in the cheap seats) remained fixed on Justice Anthony Kennedy, who typically serves as the court’s swing vote. Despite the fact that Kennedy has authored some of the most important legal victories to date for the gay rights movement – the most recent of which was the 2013 ruling that invalidated the federal Defense of Marriage Act (DOMA) – the 78-year-old justice had pointed questions for Mary Bonauto, a veteran gay rights attorney who successfully challenged Massachusetts’ same-sex marriage ban in 2003. On Tuesday, Bonauto attempted to convince the justices that the 14th Amendment should require states to license same-sex marriages.
“A word that keeps coming back to me in this case is ‘millennia,’” Kennedy said just minutes into Bonauto’s argument. “This definition [of marriage] has been with us for millennia. And it’s very difficult for the court to say, ‘Oh well, we know better.’”
Kennedy has in past opinions always shown great deference to the tenets of both states’ rights and the equal dignity of gay and lesbian people – two issues now at odds in the case of marriage equality. And Tuesday’s hearing could be viewed as a test of Kennedy’s allegiance to each. Which connection is stronger remains to be seen.
In an encouraging sign for the plaintiffs, Kennedy also seemed skeptical of the argument put forth by former Michigan Solicitor General John Bursch, who claimed that the state’s law defining marriage as between one man and one woman furthered a government interest in promoting bonding between children and their biological parents. Kennedy said the notion that only opposite-sex couples could be bonded to their children was a “wrong premise,” and raised the issue of the dignity in marriage that same-sex couples are seeking. However, Kennedy definitely had more questions for Bonauto than any other attorney – a potential sign that the justice may side with the states.
Another slight surprise was Chief Justice John Roberts, who some believed was poised to break with the conservative wing of the court and come down on the side of marriage equality. But there was little in the chief justice’s line of questioning Tuesday that suggested as much.
“You’re not seeking to join the institution; you’re seeking to change what the institution is,” Roberts responded to Bonauto’s claim that states are denying same-sex couples their fundamental right to marry without any good reason. “The fundamental core of the institution is the opposite-sex relationship, and you want to introduce into it a same-sex relationship.”
Ginsburg, who will likely side with marriage equality advocates, fiercely rejected the notion that the definition of marriage has remained fixed, pointing out that the view of women as the subordinate in marriages has changed in very recent history. “There was a change in the institution of marriage to make it egalitarian,” Ginsberg said.
The conservative justices, meanwhile, questioned whether a decision on marriage equality should be up to the high courts or left to the political process. ”I’m concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons,” Scalia said. “They are not likely to change their view about what marriage consists of. And were the states to adopt it by law, they could make exceptions to what is required for same-sex marriage, who has to honor it and so forth.”
Once the courts impose same-sex marriage as a constitutional right, Scalia continued, such exceptions become untenable, and it becomes conceivable for ministers to have to marry gay or lesbian couples.
Members of the public camped out for days on the steps of the Supreme Court in order to obtain the coveted few seats available inside. Other impassioned supporters and opponents rallied outside in anticipation of the justice’s final decision in June. If the justices rule in favor of the states, it would create mass confusion and revive the effort to reinstate same-sex marriage bans that were struck down in federal court.
The cases, a consolidation of challenges to same-sex marriage bans in four states represent a dramatic shift in public opinion with Americans becoming more accepting of gay and lesbian couples. According to an NBC News/Wall Street Journal poll conducted this year, a majority of Americans – 59% – said they supported same-sex marriage rights. Just a few short years ago, it would be unheard of for such issues to be raised to the high court.
But the justices have already laid the groundwork for this day. In a 2013 landmark ruling, the Supreme Court gutted the Defense of Marriage Act (DOMA), which explicitly defined marriage as between a man and a woman. The decision opened the floodgates with challenges to same-sex marriage bans across the country. And after the high court refused to step in on appeals to marriage equality victories last October, the laws on the books had changed in the majority of states within just a matter of months. Marriage equality is now legal in 36 states, plus the District of Columbia and regions of Missouri.
Same-sex marriage bans in Ohio, Kentucky, Michigan and Tennessee were among the final holdouts after the DOMA ruling, setting in motion the hearing scheduled Tuesday. Though lower courts struck down the states’ bans, the 6th Circuit Court of Appeals became the first of its kind in the country to rule in favor of the states.
More than 140 friend of the court briefs were filed to press the issue, with arguments against marriage equality ranging from claims that same-sex nuptials would cause a rise in abortions to maybe even death.
Former Secretary of State Hillary Clinton became the first 2016 candidate to actively embrace the hearing in support of marriage equality, by changing the colors of her campaign logo to a gay-pride rainbow. The campaign later released a video clip of Clinton sitting around a table with Iowa voters who said they were “thrilled” by her stance for the Supreme Court to rule in favor of marriage equality.