By Lisa Keen
The very first question from the U.S. Supreme Court bench Tuesday morning was about the rights of states to regulate marriage and, though attorneys for same-sex couples tried numerous times to refocus attention to the damage that bans on same-sex marriage inflict on the rights of LGBT people, the focus stayed largely on states’ rights throughout the historic argument.
For two and a half hours — more than twice the time most cases get — an animated bench grilled attorneys for same-sex couples and the four states that seek to ban their marriages.
Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer asked most of the tough questions to challenge the governmental interest served by banning same-sex couples from marriage. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito asked most of the tough questions to parties seeking to strike down those bans. Per his routine, Justice Clarence Thomas asked no questions, and true to his role as the court’s most unpredictable vote, Justice Anthony Kennedy asked tough questions of both sides.
The packed courtroom was equally lively, laughing frequently, applauding once and, at one point, a man at the back of the courtroom jumped up and began ranting loudly and incessantly about the Bible, “abominations” and that gays would “burn in hell.” Such outbursts have occurred in the court recently on other issues and the man’s disruption seemed well-timed, given that it did not interrupt any attorney’s allotted time before the bench.
But, as is also routine, the justices engaged in a great deal of interrupting attorneys throughout the proceeding.
Barely a minute into Gay & Lesbian Advocates & Defenders’ Mary Bonauto’s opening comments about how laws banning same-sex couples from marrying convey a “stain of unworthiness,” Justice Ruth Bader Ginsburg asked how the “federal government’s historic deference to states when it comes to matters of domestic relations” should influence the court’s decision on whether the state bans are unconstitutional. In asking her question, Ginsburg referred to the court’s 2013 landmark decision in U.S. v. Windsor, in which the court emphasized states’ rights to regulate marriage as it struck down the key provision of the federal Defense of Marriage Act (DOMA), which had prohibited the federal government from recognizing marriages licensed to same-sex couples in some states.
“States do have primacy over domestic relations except that their laws must respect the constitutional rights of persons, and Windsor couldn’t have been clearer about that,” said Bonauto. “And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.”
Chief Justice John Roberts jumped on Bonauto’s choice of words, saying same-sex couples weren’t seeking the right to “join” marriage but to “redefine” them. The comment echoed his remarks in 2013 and hinted early on that Roberts is not a likely vote in favor of striking down state bans on same-sex marriage.
Bonauto attempted to make the point that many things have changed for society over time, such as the role of women, but that the equal protection clause of the 14th Amendment to the U.S. Constitution provides “enduring guarantees” to citizens.
Kennedy jumped in next, first noting that it has been about 10 years since the Supreme Court struck down sodomy laws — an amount of time comparable to the time between when the court struck down state mandated racial segregation of schools and when it struck down state laws banning interracial marriages. It was an initial ray of hope that Kennedy was heading in the direction of striking down state laws. But then he compared 10 years to the “millennia” of years during which people thought of marriage as being between a man and a woman.
“This definition has been with us for millennia. And it’s very difficult for the Court to say, ‘Oh, well, we know better.'”
Within just a few minutes, Ginsburg seemed to respond to Kennedy’s comment when she said to Bonauto:
“You wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible,” said Ginsburg. “Same- sex unions would not have opted into that pattern of marriage, which was a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.”
“There was a change in the institution of marriage,” said Ginsburg, “to make it egalitarian when it wasn’t egalitarian.”
Justice Scalia soon entered the fray to say the question “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 told Bonauto.
Justice Alito took the discussion back even further than Ginsburg and Scalia, to ancient Greece, noting that same-sex relationships were accepted then but that there were no marriages between same-sex couples.
“So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?” asked Alito.
Bonauto tried to make the point that a big difference between other cultures and other times is that the United States, from its inception, made “a commitment to individual liberty and equality.”
Justice Breyer brought up the states’ “wait and see” rationale for denying marriage to same-sex couples, to which Bonauto noted that states, including Virginia in Loving v. Virginia, offered that rationale to justify miscegenation laws. The Supreme Court struck down those laws, noted Bonauto, even though 80 percent of the public supported such bans and the Supreme Court’s striking down of those laws was considered a “profound change.”
Solicitor General Don Verrilli repeatedly reminded the court that a “wait and see” approach to the issue leaves “the nation as a house divided” in the same way racial segregation did. And leaving the issue to voters, he said, “will be saying is that the demeaning, second -class status that gay and lesbian couples now inhabit in states that do not provide for marriage is consistent with the equal protection of the laws. That is not a wait-and-see,” said Verrilli. “That is a validation.”
John Bursch, a special assistant attorney general from Michigan, urged the court to affirm “every individual’s fundamental liberty interest” to decide the meaning of marriage by ensuring that voters be able to define marriage through the democratic process. The state’s marriage laws, he said, were developed “to serve purposes that, by their nature, arise from biology.”
Just as the question of whether states can ban same-sex marriage seemed to rely largely on how Kennedy will ultimately vote, the court seemed split on the question of whether a state can refuse to recognize a marriage license from another state. But the overriding concern Tuesday was how the court would rule on the first question: Does the 14th Amendment require a state to license a marriage between two people of the same sex?
Gay legal activists at the argument Tuesday expressed optimism that Kennedy will come through with the majority vote.
Kate Kendell, executive director of the National Center for Lesbian Rights, which helped representing same-sex couples from Tennessee, said she thinks there’s “no doubt” the court will find that states have to recognize other states’ marriages.
“I do think things look favorable” for striking down state bans on same-sex marriage, said Kendell on the plaza outside the court after the argument. “Kennedy is always the swing.”
Kendell acknowledged that Kennedy seemed “more inscrutable here than he was in the DOMA case.” “He didn’t really tip his hand. He asked difficult questions of both sides,” said Kendell. “But even if it’s sooner than he wants to or the court is not entirely comfortable with it, I believe… when push comes to shove, I do not believe this is a justice who is going to allow Romer v. Evans and Lawrence v. Texas and the Windsor decision to come up full stop and not have that legacy finished.”
Kennedy wrote the majority decision in all three cases, striking down a voter-approved initiative in Colorado, striking down state laws banning intimate relations between same-sex couples and striking down DOMA.
Jon Davidson, legal director for Lambda Legal, said he was encouraged by Kennedy’s comparison of Brown and Loving to Lawrence and this appeal. And he thought it “odd” that Alito “tried to make this point about Greece.”
“Sometimes, it just seems like they’re playing with you,” said Davidson.
“I was surprised that they focused so much at the beginning about this millennia this or that — that’s not how you decide the law. That’s not the basis for constitutional jurisprudence,” said Abby Rubenfeld, former legal director for Lambda Legal and one of the attorneys representing plaintiffs from the Tennessee case.
Rubenfeld said she was pleasantly surprised to hear Chief Justice Roberts ask “an interesting sex discrimination question.”
In questioning John Bursch, special assistant attorney general for Michigan, Roberts said he wasn’t sure it was necessary to get into the issue of sexual orientation discrimination to resolve the case. “If Sue loves Joe, and Tom loves Joe, Sue can marry him and Tom can’t,” said Roberts. “And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
Bursch said laws banning same-sex couples from marrying do not treat classes of men and women differently. And, he said, a 2001 Supreme Court ruling in Nguyen v. INS held that “it’s appropriate to draw lines based on sex if it’s related to biology.”(Justice Kennedy wrote that 5 to 4 majority opinion, saying a law that provided citizenship to children if their biological mothers were American, but not if only their fathers were American, was unconstitutional.)
Ginsburg interjected that the reason behind that sex discrimination was that “we know who the (biological) mother is” and was intended to avoid the possibility that a man might claim to be the father in order to gain some benefits.
If the state laws were seen as sex discrimination, the court would impose a higher standard of judicial scrutiny than mere rational basis. Laws disadvantaging people based on gender must be justified with not just a rational reason but also an important governmental interest.
Evan Wolfson, head of the national Freedom to Marry organization, said Justice Kennedy’s questions “invited our advocates to make the case about the newness and relative evolution” of the issue. “He also asked key questions about the kids. He pointed out the illogic of some of the state’s positions. And at the end of the day,” said Wolfson, “arguments are arguments and what counts is what they’re going to go back and do: read these briefs, and write the arguments, build on the law, and write the opinion. And Justice Kennedy has a long and serious legacy to build on here and I hope he does the right thing.”
Now The Wait Begins.
Today, same-sex couples can obtain marriage licenses in 37 states. In June, that could quickly become 50. Or the court might split the baby and decide states can ban same-sex marriage but must recognize marriage licenses lawfully obtained in marriage equality states. That would enable the 13 states which currently enforce bans to continue to do so and another 10 states which had to temporarily suspend their bans to reinstate them.
On NBC’s “Meet the Press” Sunday, Ted Olson, who argued the Proposition 8 case against California’s ban on same-sex marriage, said he doesn’t believe the Supreme Court will issue such a split decision. And if the court follows the precedent of Loving v. Virginia, it won’t do a split. That 1967 decision said that state laws banning marriage between persons solely on the basis of racial classifications violated the 14th Amendment’s guarantees of equal protection and due process. The question now is whether state laws banning marriage between persons solely on the basis of sexual orientation or gender violate the 14th Amendment’s guarantees of equal protection and due process.
The Supreme Court will most likely take until the end of June to issue its decision. Until then, legal scholars and media will analyze the two and a half hours of argument today to find clues for how each justice is leaning on both questions posed and to speculate how the majority will rule.
The fact that six justices agreed last year not to hear appeals from states seeking to keep their bans will prompt most to predict a victory for marriage equality. (It takes the support of at least four of the nine justices to take an appeal. The court did not take an appeal until it accepted the appeal of plaintiffs challenging the same-sex marriage bans.) The fact that Kennedy has written three of the court’s decisions treating LGBT people with respect (Romer, Lawrence and Windsor) gives marriage equality supporters hope that he’ll forge the majority once again. But his historic support for state sovereignty and his recent bond with the conservative justices to strike down the Voting Rights Act, saying the states “retain broad autonomy,” will give hope to those who support the state bans.
The Washington Post reported last week that its poll with ABC found 61 percent support gay marriage, 35 percent oppose and 4 percent had no opinion. Essentially that same percentage also opposed allowing individual states to ban same-sex marriage. NBC reported Sunday that its poll with the Wall Street Journal found 59 percent of Americans support marriage equality — up 18 points over 2009.