Justices struggled with the implications of a ruling in favor of same-sex marriage in oral arguments at the U.S. Supreme Court today, with Justice Anthony Kennedy, the vote gay-rights advocates need to win, repeatedly asking why the court should overturn thousands of years of tradition and the choices of democratic majorities on how to define marriage.
"One of the problems is when you think about these cases you think about words or cases, and -- and the word that keeps coming back to me in this case is millennia,” Kennedy said at one point. "This definition has been with us for millennia. And it's very difficult for the court to say `oh well we, we know better."
Other justices raised probing questions in Obergefell v. Hodges, including why states shouldn't also authorize "marriages" between siblings who live together and want to share economic benefits, and why four consenting adults couldn't join in one union.
"What would be the logic of denying them the same right?" Justice Samuel Alito asked Mary Bonauto, the Boston lawyer arguing for gay couples. Bonauto said multi-partner unions "is not the same thing we've had in marriage, which is the mutual consent and support of two people."
"Well, I don't know what kind of distinction that is because a marriage of two people of the same sex is not something that we have had before," Alito shot back.
Justice Antonin Scalia suffered through the arguments, making few of his trademark snarky comments in a case that will almost certainly go against him. He summed up the argument against a constitutional right to gay marriage, however, by saying “the issue, of course …is not whether there should be same-sex marriage, but who should decide the point.”
“And you’re asking us to …decide it for this society when no other society until 2001 ever had it,” Scalia said.
That's not to say the defenders of the status quo fared well. Attorney John Bursch, given the thankless task of arguing in favor of gay-marriage bans in Michigan and three other states, fell back on one of the most easily refuted justifications for traditional marriage by saying states had a rational desire to foster childrearing and stable homes. Kennedy was quick to demolish that argument, saying a decade of experience in Massachusetts shows no impact on out-of-wedlock births. He said it was “just a wrong premise” that same-sex couples can’t bond with their children.
"In order for the states to come out of the arguments ahead they had to do a better job of articulating the basis for bans on gay marriage," said Neal Katyal, a former acting Solicitor General who's now a partner with Hogan Lovells in Washington.
One phrase that barely came up during the arguments was "strict scrutiny," suggesting nobody involved in the case wants the court to find a fundamental right of gay people to marry. By declaring homosexuality to be a so-called "suspect category" deserving special consideration by courts, like women and racial minorities in other contexts, the court could spawn huge amounts of collateral litigation against businesses and religious institutions accused of discriminating against gays. That might come as a disappointment to some gay-rights advocates, who were looking forward to a broader decision in this case.
"It's unlikely this is going to be as sweeping a decision the petitioners thought it might be," said Mark Phillis, partner with Littler Mendelson in Pittsburgh who focuses on employment law.
Bonauto and U.S. Solicitor General Donald Verrilli "did a pretty good job of limiting their claim only to same sex marriage between two people, and they were grounding it not in a change in the case law," said Katyal, who's argued 24 cases before the Supreme Court.
Bonauto opened with her strongest argument: Equal protection under the 14th Amendment requires gay couples have the same right to be married as straight ones. Otherwise “the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity,” she said.
Bonauto wasn’t able to get far before Justice Ruth Bader Ginsburg interjected a question about the power of states to define marriage, which was reaffirmed in the 2012 decision U.S. vs. Windsor, striking down the federal Defense of Marriage Act. Bonauto said states have the right to govern domestic relations, but not to violate equal protection rights.
Then Chief Justice John Roberts jumped in, saying gay-rights advocates aren’t arguing to join the institution of marriage as much as to change in the “core definition” of what marriage is. He was followed by Kennedy, who asked whether judges are the best ones to make fundamental changes in laws backed by thousands of years of custom.
While 10 years have passed between the court struck down anti-sodomy laws in Lawrence vs. Texas, the same amount of time as between Brown vs. Board of Education desegregated schools and Loving vs. Virginia ended laws prohibiting interracial marriages, Kennedy said, that may not be enough to change the meaning of marriage.
"Ten years is, I don't even know how to count the decimals when we talk about millennia," he said.
Alito teased out an alternate argument against the gay-marriage bans that Kennedy had cited to overturn a Colorado law in Romer v. Evans in 1995: That the law was written with anti-gay animus. He asked if the state laws in this case were motivated by bias or an intent to demean gay people. Bonauto said whatever the primary purpose, that was the effect.
“Well, 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. “Can we infer from that that those nations and those cultures all thought that there was some, rational, practical purpose for defining marriage in that way or is it your argument they were all operating independently based solely on irrational stereotypes and prejudice?”
Bonauto said, essentially, that times and legal standards change, just as they did for sexual discrimination in the 20th century. Ginsburg came to her rescue by saying it would have been impossible to change the rules of marriage a millennia ago because same-sex couples wouldn’t have opted into an institution marked by the dominance of men over their spouses.
But Kennedy said “I would like to hear the precise answer to the question you’ve been asked several times.” Breyer chimed in to say her answer should take the form of explaining why the opposite view has been the law everywhere for thousands of years, “and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change what ….marriage is to include gay people.”
Bonauto made an individual liberty argument, comparing gay marriage to the right to interracial marriage that was upheld in Loving.
The justices clearly are worried about acting too hastily and sparking decades of acrimonious debate as the court did when it legalized abortion with Roe v. Wade. Roberts acknowledged that attitudes toward gay marriage are changing rapidly, but said “closing of debate can close minds,” and “it will have a consequence on how this new institution …is accepted.”
“People feel very differently about something if they have a chance to vote on it than if it’s imposed on them …by the courts,” Roberts said.
Alito asked Verrillli why states should treat a gay couple any differently than unmarried siblings who have lived together for years and share household expenses and chores in the same way. What’s the justification for treating them differently when it comes to estate taxes and health benefits?
Verrilli repeated that marriage is “an enduring bond between two people” and then steered off into the argument about childrearing.
Roberts asked whether religious institutions that offer housing would have to allow same-sex couples if the court finds a constitutional right to marriage and Verrilli said there’s no federal law banning such discrimination. Alito asked if a college could lose its tax-exempt status if it opposed gay marriage. “It’s certainly going to be an issue,” Verrilli said.
Kennedy asked why the government didn’t argue gay marriage is a fundamental right. Verrilli said that while it’s an important issue, it is defined by equal protection and going further would raise many questions like the one Roberts asked.
Everybody seemed to be trying to get Kennedy's vote by appealing to individual liberty and dignity, themes that echo through Kennedy's rulings in Windsor and Lawrence. Bursch tried a little to hard when he repeated Scalia’s point, that the case isn’t about how to define marriage, but who gets to decide. He tried to describe that as “every individual’s fundamental liberty interest in deciding the meaning of marriage” but Justice Sonia Sotomayor shot him down, saying “I’m sorry. Nobody is taking that from anybody.”
