Justices Skeptical of Arguments in Same-Sex Marriage Case

A man waves a flag for LGBT rights on Tuesday in front of the Supreme Court in Washington, D.C., before a hearing on same-sex marriage. REUTERS/Joshua Roberts

Updated | The U.S. Supreme Court has finished hearing arguments in the same-sex marriage case Obergefell v. Hodges. How the court will rule in this landmark case is anyone's guess.

Predicting rulings from the court based on how the justices question the lead attorneys during oral arguments is risky, but what seems clear is that the court's liberal and conservative wings both were particularly aggressive in their questioning. Their words indicated a profound concern with changing the definition of marriage as a union between one man and one woman, cutting short the political process with a court ruling and barring discrimination against gays and lesbians.

The facts of the case are these: In 2013, Jim Obergefell married John Arthur, his partner of more than 20 years, in Maryland, where same-sex marriage is recognized. The couple lived in Ohio, which does not recognize same-sex marriage. A few months after their marriage, Arthur, who suffered from Lou Gehrig's disease, died; Obergefell sued the state of Ohio to recognize their marriage so they could be buried side by side in Arthur's family plot, which admits only descendants and spouses.

Before the court are two questions. First, does the 14th Amendment require states to license same-sex marriages? Second, does the 14th Amendment require states to recognize legally performed same-sex marriages licensed by other states?

Mary L. Bonauto of Gay & Lesbian Advocates & Defenders (GLAD) argued the first question on behalf of the petitioners. She persuaded the Massachusetts Supreme Court to allow same-sex marriage in 2003, making Massachusetts the first state to recognize and license same-sex unions. Arguing the second question before the court was Douglas Hallward-Driemeier, an attorney based in Washington, D.C., with experience arguing before the Supreme Court.

For the respondents, former Michigan Solicitor General John J. Bursch argued the first question, and Joseph L. Whalen, an associate solicitor general for Tennessee, argued the second.

Justice Anthony Kennedy, widely expected to be the swing vote between the court's liberal and conservative wings, proved difficult for observers to read. The 78-year-old justice put hard questions to both sides.

"This definition has been with us for millennia," Kennedy said of the definition of marriage as between one man and one woman. "And it's very difficult for the court to say, 'Oh, well, we know better.'" Kennedy's statement touched on an eternal question for the court: When should the justices allow voters to work out a question of rights and when should the court intervene?

Kennedy's allusions to landmark civil rights cases likely gave hope to those in favor of having the court issue a dramatic ruling enshrining same-sex marriage as a constitutional right.

For example, Kennedy made the point that the amount of time between the decision in Brown v. Board of Education (1954), in which the court found establishing separate public schools for black and white students was unconstitutional, and Loving v. Virginia (1967), which overturned a ban on interracial marriages, is about the same amount of time between the decision in Lawrence v. Texas (2003), the case that struck down anti-sodomy laws in Texas that made homosexual sex illegal, and today's arguments. The implication was that the court would be moving not at a reckless speed but at a measured pace similar to its rulings in key civil rights opinions.

Noah Feldman, a professor of constitutional and international law at Harvard University, shared his interpretation in Bloomberg View: "Kennedy was making the point that he believes gradualism is appropriate in the announcement of new fundamental rights. The strong implication was that, when the court announced the end of segregation, some of the public still wasn't ready for interracial marriage. By analogy, when he created the constitutional right to gay sex, the country wasn't ready for gay marriage. Now, Kennedy implied, 12 years on, the time is right."

Chief Justice John Roberts, who in 2012 surprised many by siding with the court's liberal wing to uphold Obamacare, was also tough to pin down.

"Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife," he said. "Obviously, if you succeed, that core definition will no longer be operable." He added, "My question is, you're not seeking the join the institution, you're seeking to change what the institution is."

Roberts also said that, if proponents of same-sex marriage prevail before the court, "there will be no more debate.... Closing of debate can close minds." He continued, "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."

But Roberts also pointed out, "If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex." The chief justice asked, "Why isn't that a straightforward question of sexual discrimination?"

The other members of the court mostly stayed within their ideological bounds. Justices Sotomayor, Kagan, Ginsburg and Breyer pressed hard on the attorneys representing the states that ban same-sex marriage, while Justices Scalia and Alito asked pointed questions of the petitioners. Justice Alito asked whether allowing for same-sex marriage would not also open the door to polygamous marriage. Justice Thomas maintained his signature silence (Thomas has not asked a question during oral arguments in the past eight years).

The Supreme Court has uploaded audio of the oral arguments in two parts. So far, a transcript of the first part of the arguments is available online.

The court is expected rule in June.

Correction: This article originally stated "Justices Scalia, Alito and Thomas asked pointed questions of the petitioners." Justice Clarence Thomas has not asked a question during oral arguments in more than eight years.

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