WASHINGTON — In oral arguments today for Case No. 14­556, Obergefell v. Hodges, the U.S. Supreme Court weighed the constitutionality of state laws that bar same-sex couples from legal marriage or do not recognize the marriages of such couples legally wed in other states.

Marked by often intense exchanges between the justices and advocates representing the same-sex couples and states involved in four related cases, the oral arguments addressed the meaning and purpose of marriage, the states’ right to enact marriage laws and the religious liberty of clergy who oppose changes in marriage laws.

While many legal experts have predicted that the high court will overturn state laws barring same-sex couples from legal marriage, scholars and activists were startled by Justice Anthony Kennedy’s cautious response to changing the nation’s marriage laws.

“The word that keeps coming back to me is ‘millennia,’” said Kennedy, the perennial swing vote on the divided court, in a reference to marriage defined as a union of one man and one woman.

“This definition has been with us for millennia. It’s very difficult for the court to say, ‘Oh, well, we know better.’”

Ryan Anderson, an author and leading authority on marriage issues at the Heritage Foundation, said it was hard to forecast the court’s decision.

“Clearly, the justices were conflicted over this issue,” said Anderson, who attended the oral arguments.

“The first question out of Justice Kennedy was, ‘Do you want to throw away a millennia-old definition of marriage for 10 years of same-sex marriage?’ He was asking questions that I think are a good sign. They suggest his mind is not made up.”

 

Two Key Questions

During two and a half hours of time allotted for the oral arguments, the justices sought to address two questions:

“Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?” was the first and most critical question before the high court.

This question led the justices to prod John Bursch, the former solicitor general  of Michigan who represented the states, to explain why their laws did not violate same-sex couples’ right to due process and equal protection, as guaranteed under the 14th Amendment.

Bursch was pressed to defend his argument that changing the nation's marriage laws would weaken  the connection between a vital social institution and procreation, and thus leave many children without intact families.

But in equal measure, the justices peppered Mary Bonauto, the lawyer representing 17 petitioners, to explain why same-sex couples couldn’t wait until states embraced “marriage equality.”

Bonauto began her argument with the assertion that heterosexual and homosexual couples sought to affirm the same goods through legal marriage, and the states had no good reason to bar the latter group from access to a central social institution. “The intimate and committed relationships of same-­sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society,” stated Bonauto.

“If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity. Indeed, the abiding purpose of the 14th Amendment is to preclude relegating classes of persons to second­-tier status.”

Bonauto sought to connect the social and political changes that have fueled the advance of “marriage equality” to the steady and proper expansion of civil rights to cover all previously marginalized groups, such as racial minorities and even married women, who were once viewed as subordinate to their husbands. 

 

Justices Roberts and Alito

But Chief Justice John Roberts quickly challenged that line of argument and suggested that Bonauto was proposing something far more radical.

“My question is [related to]: You’re not seeking to join the institution; you’re seeking to change what the institution is,” said Roberts.

“The fundamental core of the institution is the opposite-sex relationship, and you want to introduce into it a same-­sex relationship.”

Justice Samuel Alito questioned Bonauto’s suggestion that the primary purpose of laws excluding same-sex couples from marriage was “to demean gay people.”

Alito noted the absence of any marriage laws that incorporated same-sex couples until the 21st century and asked if that fact also reflected the impact of “irrational stereotypes.”

Bonauto replied that the 14th Amendment created a new standard for the nation’s marriage laws. “That’s when we made — our nation collectively made  — a commitment to individual liberty and equality. “

Subsequently, Alito attacked her argument from another vantage point, asking whether it could stand up to future challenges to legal marriage as an institution that was limited to two consenting adults of either sex.

“Suppose we rule in your favor in this case and then, after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?” Justice Alito asked.

Bonauto deferred to the traditional practice of reserving marriage as a union of two people.

“I assume the states would rush in and say that when you’re talking about multiple people joining into a relationship that that is not the same thing that we’ve had in marriage, which is on the mutual support and consent of two people,” she said.

When several justices suggested it would be prudent to await further research on a social experiment that could impact the welfare of children, Bonauto responded, “Wait and see by itself has never been considered a legitimate justification, a freestanding justification under the 14th Amendment. ”

 

Political Repercussions?

Roberts also raised concerns about the political repercussions of a unilateral decision by the court to make same-sex “marriage” the law of the land.

He noted that the voters of Maine had changed their views on same-sex “marriage” quickly, “but if you prevail here, there will be no more debate. ... 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.”

Strikingly, that same issue was raised by Justice Stephen Breyer, a member of the court's liberal wing. 

“The opposite view” – marriage as a union of one man and one woman – “has been the law everywhere for thousands of years. Suddenly you want nine people outside the ballot box to require states to change,” said Justice Breyer.

Justice Antonin Scalia broadened this line of argument to ask about the religious liberty of ministers who resist the redefinition of marriage.

Bonauto replied, “No clergy are forced to marry any couple that they don’t want to marry. ”

But Scalia pressed harder, noting that when ministers preside at weddings they act not only in a religious capacity, but as “instruments of the state. ”

“I don’t see how you could possibly allow that minister to say, ’I will only marry a man and a woman. I will not marry two men,’” Scalia continued.

“Which means you could have ministers who conduct real marriages that are civilly enforceable at the National Cathedral, but not at St. Matthew's downtown, because that minister refuses to marry two men and, therefore, cannot be given the state power to make a real state marriage. I don’t see any answer to that,” he concluded, in a reference to the Cathedral of St. Matthew, which adheres to the Catholic Church’s teaching on marriage.

 

Free-Exercise Issues

Donald Verrilli, the solicitor general who offered the Obama administration’s strong endorsement of same-sex “marriage,” did not dispute the free-exercise issues at stake.

Some legal experts and Church leaders have warned that religious schools could lose their tax-exempt status  if they don’t embrace same-sex “marriage.” And during the oral arguments, Verrilli agreed that such institutions could have an “issue” if the court ruled in favor of a constitutional right to same-sex “marriage.”

“[R]edefining marriage raises countless questions that society hasn’t yet fully anticipated,” James Rogers, the executive director of public affairs for the U.S. Conference of Catholic Bishops, told the Register.

“Hundreds upon hundreds of federal and state laws are tied to the long-standing definition of natural marriage.”

The government’s brief in favor of the same-sex couples was expected to carry additional weight with the court.

But most court watchers were focused on Justice Kennedy, who began by raising concerns about redefining a fundamental social institution but later seemed to embrace the desire of same-sex couples for equal protection under the law.

Kennedy noted the sea change in national attitudes and values after the Supreme Court’s landmark decision in Lawrence v. Texas, which struck down that state’s sodomy laws in 2003. “And what we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people we now understand do not justify that kind of impression,” Kennedy said.

Chief Justice Roberts stepped in to explain that in Lawrence the justices barred the state from intruding in a ”personal relationship”; they did not attempt to “sanction” same-sex relations.

Subsequently, the justices addressed the second question before them: must states recognize the marriages of same-sex couples who were legally wed in other states that bar the practice?

Roberts, who led the questioning on this matter, suggested that if the justices ruled that states must recognize the marriages of legally wed same-sex couples, would it be “just a matter of time” before “one state” or a cluster of states would “set policy for the nation?”

 

Hard to Predict

In the high court’s 2013 landmark decision in Windsor, which struck down part of the federal Defense of Marriage Act (DOMA) on the grounds that it denied legally married same-sex couples equal protection under the law, Kennedy wrote the majority opinion that found that the states, not the federal government, should set marriage law. And it was Kennedy who framed U.S. lawmakers’ enactment of DOMA as an expression of irrational “animus” against persons with same-sex attraction.

This time, it is not entirely clear which way the court’s swing vote will go, but Ed Whelan, a legal scholar who blogs at National Review’s Bench Memos, is not enthusiastic.

“Based on an early review of the oral argument, I continue to expect that five justices will misread the Constitution to bar states from retaining the perennial definition of marriage,” Whelan told the Register.

“Given his record, I think that Justice Kennedy was just pretending not to have made up his mind.”

Ryan Anderson, for his part, called for the nine justices to adopt a consistent position that leaves the decision to redefine marriage up to the states, not the high court.

“If the court is to be consistent with its marriage ruling from just two years ago, then the court must uphold state marriage laws defining marriage as the union of husband and wife. Nothing in the Constitution requires all 50 states to redefine marriage.”

Joan Frawley Desmond is the Register’s senior editor.