Justices appear cautious, divided on same-sex marriage

Richard Wolf and Brad Heath | USA TODAY

Show Caption Hide Caption Supreme Court hears oral arguments on gay marriage USA TODAY's Brad Heath reports on what he saw and heard of oral arguments before the Supreme Court in same-sex marriage cases.

WASHINGTON — The Supreme Court appeared both cautious and deeply divided Tuesday on whether to change an opposite-sex definition of marriage that several justices noted has existed for "millennia."

Finally addressing head-on the question of whether gays and lesbians should be allowed to marry nationwide, the court's key conservatives indicated that a victory for same-sex couples would not come easily.

Their ambivalence about leading the country into largely unknown territory highlighted a 2 1/2-hour oral argument that was among the most consequential in the court's 226-year history. Faced with an uncertain future, it seemed, several justices would prefer to leave marriage laws to the states.

At the same time, two conservatives -- Justice Anthony Kennedy and Chief Justice John Roberts -- showed sympathy for same-sex couples unable to marry in 13 states because marriage laws are intended to regulate procreation.

"Same-sex couples say, of course, 'We understand the nobility and the sacredness of the marriage,'" said Kennedy, who wrote the court's 2013 decision that allowed legally married gay and lesbian couples to get federal benefits. "We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled."

"I'm not sure it's necessary to get into sexual orientation to resolve the case," said Roberts, who dissented from the 2013 decision. "I mean, 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. Why isn't that a straightforward question of sexual discrimination?"

If those questions put former Michigan solicitor general John Bursch on the defensive, the same was true for Mary Bonauto, a pioneer of the same-sex marriage movement, and U.S. Solicitor General Donald Verrilli, who argued that gay and lesbian marriages should be protected under the Constitution.

"The word that keeps coming back to me in this case is 'millennia,'" said Kennedy, who often casts the deciding vote on the court. "This definition has been with us for millennia. It's very difficult for the court to say, 'Oh, well, we know better.'"

Roberts echoed that point, telling Bonauto, the lead lawyer for same-sex couples challenging states' marriage bans, "You're not seeking to join the institution, you're seeking to change what the institution is."

The justices' eventual ruling on the case — actually six cases with 32 plaintiffs consolidated from Ohio, Michigan, Tennessee and Kentucky — will determine whether same-sex marriage becomes legal across the country, or whether states retain the authority to ban it. A decision is expected by late June.

POTENTIAL MIDDLE GROUND

The court's conservatives appeared more willing to find a middle ground when the topic shifted to whether states must recognize same-sex marriages already licensed by other states. That issue would be pertinent only if the court does not find a constitutional right to same-sex marriage everywhere.

Douglas Hallward-Driemeier, arguing on behalf of same-sex couples married elsewhere but living in Ohio, Kentucky and Tennessee, said the message that's sent is, "If you choose to get married in your state, just don't move to ours. That's the cost of federalism."

Justice Samuel Alito wondered whether recognizing out-of-state marriages represented "something in between," adding, "I suppose that's possible, isn't it?"

But Joseph Whalen, Tennessee's associate solicitor general, said his state and others that "have done nothing here but stand pat" should not have to abide by other states' marriage laws.

The likely swing vote on the court is Kennedy, who has authored the last three major rulings advancing the cause of gay rights. On one hand, he has defended voters' rights to enact state constitutional amendments, most recently in a Michigan case last year that upheld a ban against racial preferences in university admissions. But he also wrote the 2013 opinion in United States v. Windsor striking down the federal Defense of Marriage Act.

Kennedy had tough questions for both sides Tuesday, as he often does, leaving the outcome of the case in doubt -- and making him the most likely author of its eventual ruling.

When Bursch said a rise in out-of-wedlock births illustrated the decline of traditional marriages to the detriment of children, Kennedy noted that gay and lesbian couples frequently adopt those children. "I think the argument cuts quite against you," he said.

A 'REFRESHING' PROTEST

The first 90 minutes of arguments revealed a court deeply divided on whether the Constitution requires states to permit gay and lesbian couples to marry. So intense was the debate that when a lone protester stood and yelled, "The Bible teaches that if you support gay marriage, you will burn in hell," Justice Antonin Scalia jokingly called the interruption "rather refreshing."

The more conservative justices raised questions about whether they should allow voters to settle the issue, or simply adopt a wait-and-see attitude on gay marriage. They also warned that forcing gay marriage on all states could lead to religious upheaval.

"Would a religious school that has married housing be required to afford such housing to same-­sex couples?" Roberts asked.

The chief justice also sounded worried about ending the national debate over gay marriage. "Closing of debate can close minds, and it will have a consequence on how this new institution is accepted," he said. "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."

Verrilli urged the court not to wait, arguing that they must decide now whether the Constitution's guarantee of equal protection permits states to exclude same-sex couples from marriage.

"Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now," he said.

The court's more liberal justices pounced on Bursch's argument that allowing same-sex marriage would harm the relationships of opposite-sex couples and lead to more out-of-wedlock children.

Justice Elena Kagan asked if it would be constitutional for states to limit marriage to couples that pledged to have children. Justice Ruth Bader Ginsburg asked if states could exclude 70-year-olds from marriage because they would not have kids.

They also questioned whether states could justify blocking same-sex marriages, challenging arguments that such laws advance a government interest in connecting children to their biological parents.

"How does withholding marriage from one group, same-sex couples, increase the value to the other group?" Justice Sonia Sotomayor asked.

Bursch replied that Michigan voters who banned gay marriage may have been worried that changing the meaning of marriage – from one focused on children to one focused on adults' relationships – could have consequences for families "across generations." The state's interest isn't in sanctifying loving relationships, he said; it's in connecting children to their parents. His answers seemed to do little to sway his questioners.

Kennedy, too,challenged that reasoning, Marriage, Kennedy said, is "dignity-bestowing, and these parties say they want to have that same ennoblement."

'RIGHT SIDE OF HISTORY'

The couples who challenged those laws expressed optimism after the arguments ended. "We stand before you one step closer to being a legalized, recognized family in the state of Michigan," said April DeBoer, who along with her partner Jayne Rowse challenged the state's ban. "We're on the right side of history, and our kids will now receive equal protection."

"I trust in the Supreme Court to uphold those ideals that our Constitution enshrines: equal justice under the law and equal treatment," said Jim Obergefell, who challenged Ohio's ban in order to have his name on his late husband's death certificate.

The high court challenge to states' gay marriage bans is destined to make even more of an indelible mark on history than the two cases decided by the court in 2013 — United States v. Windsor, which forced the federal government to recognize gay marriages, and Hollingsworth v. Perry, which made California the 13th state to allow them when the justices refused to intercede.

The court sidestepped the issue last October, when it let stand appeals court rulings striking down gay marriage bans in Virginia, Indiana, Wisconsin, Oklahoma and Utah. Those rulings and a later appeals court decision affecting Idaho and Nevada drew in neighboring states as well. As a result, more than 70% of Americans now live in states where gay marriages are legal, and tens of thousands of couples have tied the knot.

But in November, Circuit Judge Jeffrey Sutton issued a 42-page appellate decision in which he said lower court judges' hands are tied by a one-sentence Supreme Court ruling in 1972 that he said "upheld the right of the people of a state to define marriage as they see it."

While it took a decade after Massachusetts first legalized same-sex marriage in 2003 for the first dozen states to follow suit, the 2013 rulings ignited a second wave. In the last year alone, the number of gay-marriage states has more than doubled from 17 to 37.

Audio of oral arguments, part 1

Audio of oral arguments, part 2