Our Date With History: SCOTUS Hears Marriage Equality Cases

Historic arguments on same-sex marriage took place at the Supreme Court Tuesday.

The historic oral arguments before the U.S. Supreme Court on Tuesday on pending marriage cases consisted of tough questioning for attorneys on both sides of the litigation.

Forecasting the way the court will rule on litigation challenging marriage bans in Michigan, Ohio, Kentucky and Tennessee based on the two-and-a-half hour arguments is difficult because key members of the bench — Chief Justice John Roberts and Associate Justice Anthony Kennedy — wouldn’t give a clear signal on their views.

Kenendy, who write numerous gay rights cases for the Supreme Court including the 2013 decision against the Defense of Marriage Act, expressed a wariness about a decision instituting the right to gay nuptials across the country. At one point, he said a word to which he keeps returning on marriage is “millennia.”

“This definition has been with us for millennia, and it’s very difficult for the court to say we know better,” Kennedy said.

But Kennedy also offered a contrasting view when John Bursch, the Michigan attorney defending a state’s right to refuse marriage licenses to same-sex couples, delivered his arguments.

Bursch drew upon as an example of need for the law the number of children being born out of wedlock, saying since 1970, the out-of-wedlock birth rate has gone from 10 percent to 40 percent. Kennedy shot back, insisting that statistic instead of proving the attorney’s point “cuts quite against” having a ban on same-sex marriage.

“Under your view, it would be very difficult for same-sex couples to adopt these children,” Kennedy said.

In a discussion about the benefits of marriage, Kennedy also spoke about same-sex couples wanting access to the institution because it has a “noble purpose” and is a “dignity that can be fulfilled.”

Despite his varying comments, Kennedy has a reputation of being champion of gay rights during his decades on the bench. It’s hard to see how he would depart from these rulings to join a decision upholding state bans on same-sex marriage.

Roberts, whom some observers see as a potential swing vote in the case, undercut the image of him being sympathetic to same-sex couples early on during his questioning of Mary Bonauto, civil rights director of the New England-based Gay & Lesbian Advocates & Defenders. She argued states shouldn’t be allowed to withhold marriage licenses to same-sex couples.

“My question is you’re not seeking to join the institution, you’re seeking to change what the institution is,” Roberts said. “The fundamental core of the institution is the opposite-¬sex relationship and you want to introduce into it a same-¬sex relationship.”

But Roberts also raised the possibility that denying marriage licenses to same-sex couples is unconstitutional, asking why the case of a hypothetical couple named Tom and Joe not being able marry isn’t “a straight-forward question of sexual discrimination.”

Other justices on the court were more consistent with their approaches to same-sex marriage during oral arguments, keeping in tune with their reputations as conservative or liberal justices.

U.S. Associate Justice Antonin Scalia expressed concern about a court decision in favor of same-sex marriage requiring ministers to perform same-sex wedding ceremonies, saying if instead of the courts, the states were allowed to handle the issue, “they could make exemptions.”

The Catholic justice brought up the possibility of a same-sex marriage performed at National Cathedral, which condones such unions, negatively impacting St. Matthews, the D.C. seat of the Catholic Church, which remains opposed to same-sex marriage.

Although Bonauto insisted these clergy would continue to have a right to refuse same-sex marriage no matter what the court ruled, Scalia was unmoved.