The Supreme Court on Tuesday heard oral arguments in the four cases consolidated under the title of Obergefell v. Hodges, to consider whether the Constitution requires states to issue marriage licenses to same-sex couples, and whether states must recognize same-sex marriages performed in other states where they are legal. Justices appeared somewhat split along ideological lines in their questioning. (Audio may not work on all devices.)
What is the definition of marriage?
10:02 a.m.: The attorney for the plaintiffs, Mary L. Bonauto, a revered gay rights activist, opened up this historic hearing. In her opening remarks, she called marriage the “foundation of family life in our society” and suggested that relegating gay couples to second-class status conferred a “stain of unworthiness” on gay people. But before she could get very far down her line of thinking, Chief Justice John G. Roberts Jr. begins what will turn out to be quite a grilling by several justices on the definition of “marriage.”
Up until the past few years, every definition of marriage he looked up defined it as between a man and a woman, Roberts said. “You’re not seeking to join this institution but change what this institution is,” he said.
Bonauto responded that, in fact, the American public has been discussing the merits of same-sex marriage since at least the 1970s.
Kennedy jumps in early
10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. “The word that keeps coming back to me is ‘millennia,’ ” he said.
Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. “I don’t even know how to count the decimals,” he said. “This definition has been with us for millennia.”
Alito changes the subject
10:10 a.m.: Justice Samuel A. Alito asks about a suggestion in the plaintiffs’ briefs that laws banning same-sex marriage seek to “demean” gay people.
“Do all these states seek to demean gay people?” he asked.
Bonauto responded that perhaps not. But “even if that is not a purpose to demean … they encompass moral judgments and stereotypes of gay people.”
Going back to those ‘millennia’
10:12 a.m.: Alito came back to the long-standing notion of marriage, noting that “until the end of the 20th century, there never was a nation or a culture that recognized marriage between two members of the same sex.” The justices came back to this point over and over again, asking whether it was the court’s place to require states to abandon that old definition.
Bonauto got an assist from Justice Ruth Bader Ginsburg, who interjected to point out that legal views of marriage have changed to make them more “egalitarian.”
Right, Bonauto said. In the past, “women’s legal identity was absorbed into the male” in a marriage. These days, women are seen as an equal half of the pair.
But Roberts suggested that this was not an apt comparison, because the subservience of women was not inherent in the definition of marriage.
Bonauto responded that it is appropriate to consider changing views and evolving social mores when considering these questions. “I do believe times can blind, and it takes time to see the stereotypes.”
Scalia considers the precedent
10:16 a.m.: Justice Antonin Scalia noted that not all societies banned mixed-race marriages in the past – not even every state. But same-sex marriage is different, he suggested, asking whether Bonauto knew of any country that respected same-sex marriages prior to the Netherlands in 2001?
She said no.
Alito noted that even some cultures that were more open-minded toward homosexual relationships, such as ancient Greece, did not have same-sex marriage. Why is that, he asked?
Bonauto deflected the question. “I can’t speak to what was happening with ancient philosophers,” she said.
Breyer tries to nail Bonauto down
10:18 a.m.: Justice Stephen G. Breyer asked a blunt and forceful question of Bonauto, encapsulating what he felt was the broader question being leveled by the justices that Bonauto had not yet successfully answered.
“The opposite view” – that marriage is between a man and a woman – “has been the law everywhere for thousands of years. Suddenly you want nine people outside the ballot box to require states to change [this configuration],” he said.
Alluding to the fact that same-sex marriage has been gaining support state by state, with some states taking a wait-and-see approach, he asked: Why not “wait and see whether in fact doing so in other states is or is not harmful to marriage?”
Bonauto noted that waiting to see what happens is not neutral but rather harmful to the couples who are excluded from marriage until then.
Bonauto closed with an answer to the question of “who decides.”
“It’s not the government, it’s up to the individual to decide who to marry.”
Alito goes there, regarding polygamous relationships
10:20 a.m.: Alito asked what many others have wondered: If the justices alter the definition of marriage by allowing same-sex couples to wed, does this not open the door to demands that polygamous relationships be recognized in this way?
No, Bonauto said. Such relationships raise concerns about “coercion” and “consent” and a host of complicated questions that states, which have jurisdiction over marriage, may not be able to answer. For example, in a relationship with more than two people, “who makes the medical decisions in an emergency?”
Roberts, Kennedy: Why not wait and see?
10:22 a.m.: Kennedy suggested that there hasn’t been enough time to truly see the effect of redefining marriage. “If we’re not going to wait, it’s only fair to say we’re not going to consult the social science,” he said.
Bonauto responded: “Waiting is not neutral.”
Roberts approached the question a different way. The pace of acceptance of gay marriage has been “truly exceptional” and “across broad society,” he said, pointing out that Maine voters in 2009 voted to ban same-sex marriage and three years later voted to enact it. But letting the Supreme Court decide essentially halts this progress, he said. “Closing the debate can close minds, and this can have consequences about how this right is accepted” by those who have resisted it, he said.
It is a point that has been raised previously by some supporters of same-sex marriage who preferred a slower approach to their cause.
Bonauto, however, responded that there are certain structural problems to this approach. For example, not all laws are as easily changed as the one in Maine.
Scalia brings up religious liberties
10:24 a.m.: Justice Scalia said he was reluctant to establish a new right that would be so “unpalatable” to so many people of faith. He asked whether making this a constitutional right would force clergy to perform same-sex weddings.
No, Bonauto replied. She was helped along by Justice Sonia Sotomayor, who coaxed from Bonauto that states that have anti-discrimination measures in place have not tried to force clergy to perform same-sex weddings. She was helped along by Justice Elena Kagan, who noted that despite the Constitution’s bar against religious discrimination, a rabbi is not forced to perform marriages between Jews and non-Jews. “These rabbis get all the powers and privileges of the state.”
Protester briefly disrupts court
10:29 a.m.: Before U.S. Solicitor General Donald B. Verrilli Jr. could speak to the justices, a protester inside the chamber stood up and began shouting.
“Homosexuality is an abomination!” the man shouted from the center of the chamber.
He continued yelling about an “abomination to God” as he was quickly taken outside by security, but his shouting could be heard echoing through the building for several minutes.
The interlude was “kind of refreshing,” Scalia remarked. The room chuckled as Verrilli began to make his remarks.
As Verrilli began to discuss Lawrence v. Kansas, giving way to a discussion about the fundamental nature of marriage, the muffled cries of “abomination” could still be heard in the courtroom.
Questions of enforcement
10:38 a.m.: Alito asked Verrilli about the essential elements of a marriage. Verrilli described a union that involves mutual support, a relationship intended to last until death and the raising of children.
So Alito offered a hypothetical: A same-sex couple and a pair of siblings. Both groups live together, and both groups share finances and chores.
“Is there any reason why the law should treat the two groups differently?” Alito wondered. In response, Verrilli argued that marriage is a fundamentally different concept.
The chief justice seemed interested about how enforcement would work, offering Verrilli a different hypothetical. He asked whether a religious school with housing for married couples could be forced to house same-sex couples.
Verrilli said that different states would have different levels of enforcement and differences in how they would treat such a scenario. But he pointed out that the issue will arise no matter what the justices decide in this case.
Breyer, Sotomayor: Marriage a fundamental liberty
10:46 a.m.: The longest speaker on the schedule during today’s arguments is attorney John J. Bursch, who was allotted 45 minutes to speak on behalf of Michigan. As his appearance before the justices got underway, he was quickly pressed by two of the court’s liberal justices on the intertwined ideas of marriage and liberty.
“Marriage is fundamental,” Breyer said. It is open to almost all people, he said, which means that same-sex couples “have no possibility to participate in that fundamental liberty.”
Sotomayor echoed that thought by saying that if the justices were to side in favor of same-sex couples, it would not take any liberty from anyone. Many people, gay or straight, would still choose not to get married, she said.
But Bursch said that the state’s interest doesn’t lie in ideas of marriage as a right to all people. Rather, its interests are built around marriage as being about a parent and a child or children.
He cautioned — for what would turn out to be the first of several times — that moving away from this could have consequences.
The question of who is harmed
10:50 a.m.: Listen to two people debate same-sex marriage for long enough, and you are bound to hear the question: What harm would it actually bring? How could two strangers getting married impact another person’s life or marriage in any way?
This idea became a recurring theme throughout much of Bursch’s appearance before the justices, as they returned again and again to the concept. And Bursch spent much of his time arguing that there would be harm if the concept of marriage as being about raising children is eroded. In particular, he warned again and again that consequences would follow if society divided marriage from child-rearing.
“It has to do with a societal understanding of what marriage means,” he said.
This understanding has to do with how couples view their children and their obligations, he argued. “Ideas matter, your honors,” he said.
Bursch provided another hypothetical: If you take two sets of couples with children, and one couple thinks their marriage is about the child while the other thinks it is about their personal feelings and love and commitment, what is to stop the latter couple from separating, causing harm to the child?
This issue is not about the sexuality of the parents, he said, and would be the same if the parents in these cases were gay or straight. “We’re concerned about all the children,” he said.
Breyer pushed back at this idea, pointing out that many straight couples do not have children. And Sotomayor said that everyone enters into a marriage with their own vision of it, pointing out that parents still have an obligation to support their children after separation or divorce.
Kagan questions ‘procreation-centric view’
10:50 a.m.: Kagan questioned what she called “the procreation-centric view of marriage,” which she said raises other questions.
What if a state with this viewpoint said that they would not issue marriage licenses to a couple that doesn’t want children, she asked Bursch. Kagan offered one of the day’s many hypotheticals to Bursch: Would such a law be constitutional?
Bursch said that it would not be, but his reasoning moved away from the equal protection issues that will be considered by the justices when they consider same-sex marriage. Instead, he argued that this would be a question of privacy.
“It would be an unconstitutional invasion of privacy to ask about if they want children,” he said.
The cold calculus of marriage
11 a.m.: What is a marriage? The answer, as the justices pointed out repeatedly Tuesday morning, depends on who you ask.
To Justice Alito, for example, the “reason for a marriage is to provide a lasting bond.”
But Bursch said that the state has no interest in this bond, nor does it particularly care if you love your spouse. In fact, he said, there is no governmental reason to care if two people getting married love one another.
“The state doesn’t have an interest in love or emotion at all,” he said.
Procreation, he argued, is what matters.
Sotomayor: Right to marriage ’embedded in our Constitution’
11:05 a.m.: Two of the court’s liberal justices emphasized that marriage should already be a right, one that is protected by the laws we already have.
Breyer said that a person could argue that “marriage is as basic a right as there is” under the 14th Amendment. And he questioned the idea of excluding gay couples from marriage when they are, for all intents and purposes, identical to the people who can currently get married across the country.
Sotomayor was more blunt.
“The right to be married is embedded in our Constitution,” she said. Why, then, can the state bar gay people from this “fundamental” right?
Shifting focus from families will have ‘consequences,’ lawyer says
11:09 a.m.: Bursch said again that shifting the focus from reproduction and children would have “consequences.” This time, he offered the justices one possible consequence: A rising rate of out-of-wedlock births.
(The Centers for Disease Control and Prevention has found that the number of children born to unmarried parents has sharply risen since the 1970s, and there has been a similar rise over the past few decades in the number of adults never getting married.)
But the justices immediately questioned his argument. Sotomayor asked about places such as Massachusetts, where same-sex marriage has been legal for more than a decade.
Bursch replied that this was a smaller window of time, but Kennedy pointed out that it was Bursch who brought up the out-of-wedlock statistics in the first place. Kagan followed up by saying it is hard to see the connection between “committed same-sex marriages” and how people will act toward their biological children.
“There are consequences,” Bursch said.
Kagan: Gay marriage means more adoptions
11:14 a.m.: The discussion of children born outside of marriage was followed quickly by questions about adoption. Gay couples will adopt children, and if they can get married, that brings the children into two-parent homes, Kagan said.
“More adopted children in more married homes seems like a good thing,” she said.
The democratic process argument
11:18 a.m.: Bursch and the justices briefly broke away from discussing the basic nature of marriage for him to offer another reason why the justices should not opt to make same-sex marriage the law of the land: the democratic process.
He argued that there is a fundamental question about marriage, and when it goes through the process of amendments and propositions, it becomes an issue that people have to talk out and debate. If the federal government enacts it, he argued, they would be “cutting off that dialogue.”
‘The state doesn’t care about your sexual orientation’
11:25 a.m.: While the right to marriage is being debated, the right to intimacy — something enshrined by the Loving v. Virginia case — is not being discussed. Kagan asked Bursch about this, saying that we wouldn’t ban gay people from expressing intimacy.
Bursch quickly agreed with her, arguing that the case is not about that in any way.
“The state doesn’t care about your sexual orientation,” he said.
Kagan wasn’t convinced, though, saying that sexual orientation is what the case is ultimately about.
Court takes a break as it prepares for second question of the session
11:33 a.m.: The court took a break as lawyers and a small group of reporters traded places for the second but related question the court confronted: May a state that bans same-sex marriage be forced to recognize a same-sex marriage performed in a state where it’s legal?
There are two important things to know about this question, which several justices mentioned as the argument got going.
If the court, in answering the question argued earlier, declares a right to same-sex marriage, the question about recognition or non-recognition becomes moot. All states will be required to permit, and of course, recognize, same-sex marriage.
If the court can’t agree on a right to same-sex marriage, the second question is critical.
If states must recognize same-sex marriage wherever performed, as lawyers for the states in the case have argued, then it effectively nationalizes same-sex marriage, regardless of any bans in force in particular states.
If states don’t have to recognize them, lawyers for the same-sex couples argued, it creates more of a patchwork than a policy.
It could deter same-sex couples from crossing state borders for fear of being ineligible to adopt children or of being denied spousal benefits rights or the rights normally assumed by a spouse upon the death of his or her mate.
Scalia presses on potential consequences of forcing states to comply
11:40 a.m.: Douglas Hallward-Driemeier is the attorney for the plaintiffs in the second argument heard today. He argued that states must recognize same-sex marriages regardless of their own laws, or else they “effectively dissolve this marriage.”
Scalia pressed hard, rhetorically at least, on the potential consequences of forcing states to recognizes marriages that are otherwise banned under their own laws.
What if one state decides to allow polygamy, he asked Hallward-Driemeier. Would other states then be forced to also recognize the polygamous marriage that decided to relocate within its borders?
Hallward-Driemeier responded that no, they would not have to recognize a plural marriage because such an institution doesn’t exist in this state. Scalia responded that a same-sex marriage institution also doesn’t exist in the states that ban such unions; but Hallward-Driemeier suggested that these are fundamentally different examples, underscoring the point by noting that adjusting a marriage form to allow for same-sex marriages could be accomplished by simply removing gender-specific labels and replacing them with gender-neutral ones.
What if one state permits, say, 13-year-olds to marry? Would every state then have to accommodate the teenage newlyweds should they cross the border for one reason or another?
Probably not, Hallward-Driemeier responded, noting that “true consent” of a minor cannot be divined. He suggested that states generally, though not always, have an interest in recognizing marriages performed in other states rather than “destroying” them. He suggested that such a situation would not arise because “most states” don’t allow these marriages anyway.
That answer played into the hands of conservatives, to some extent, who note that until forced to do so by court rulings, most states did not allow same-sex marriage, either.
Ginsburg: States rarely refuse to recognize marriages legal in other states
11:45 a.m.: Justice Ginsburg made the point that under today’s laws, it is exceedingly rare for a state to refuse to recognize a marriage that’s legal in another state, and what a “stark departure” it would be to create an exception for same-sex marriages.
The lawyer for the gay couples, of course, agreed. Neither he nor anyone else could come up with any recent examples of this occurring. Historically, Hallward-Driemeier noted, it’s only happened in cases of incest or underage marriage, or in cases of miscegenation, marriage between couples of different races.
That was a softball meant for Hallward-Driemeier, as those fighting bans on same-sex marriage compare them with bans against interracial marriage that existed in some states until the Supreme Court declared such prohibitions unconstitutional in the 1967 case Loving v. Virginia. The more same-sex marriage is made to look like interracial marriage in the eyes of the justices, the better it is for the case of those who wish to strike down existing bans.
Roberts: Will one state or a minority of states be setting national policy?
11:50 a.m.: At this point, Chief Justice Roberts kind of takes over the questioning. That suggests a deep interest on his part in Question 2 — must a state banning same-sex marriage recognize a legal same-sex marriage from another state?
Would not forcing a state to recognize a same-sex marriage “undermine” that state’s interest in fostering traditional marriage between a man and a woman, he asked. Wouldn’t it be “just a matter of time” before “one state” or a minority of states would “set policy for the nation?”
Kennedy appears less interested in second question
11:58 a.m.: It seems significant — because anything Justice Kennedy does or doesn’t do is significant in a potentially close case like this — that Kennedy has said nothing so far. While active in the first part of the arguments this morning, on the question of whether there is a right to same-sex marriage, he seems relatively disinterested in this second question.
Is that because he’s confident that the court will rule it unconstitutional to ban same-sex marriage, in which case the question of recognition, or non-recognition, becomes moot?
Rather than asking questions, he is swiveling back and forth in his chair, frankly looking a little impatient.
He clearly does not want to engage on this, unlike the conservatives, Alito and Scalia, who presumably would like to see the court take a pass on the more explosive question of same-sex marriage.
Lawyer: Same-sex couples should ‘get the same respect’ as corporations
12:05 p.m.: Hallward-Driemeier, for the same-sex couples, notes that in the United States, a corporation is a corporation no matter which state it is organized in. Under the constitution, Texas, for example, is not free to tell a company based in California that it can’t do business unless it somehow changes its ways to match some peculiarity of Texas law.
Couples in a marriage, he says, should at least “get the same respect.”
Ginsburg has a zinger
12:08 p.m.: Justice Ginsburg just let go of a zinger. Noting that the states in the case argue that their strong interest in procreation is a basis for encouraging opposite-sex marriage and banning same-sex marriage, Ginsburg then wondered whether it would be acceptable for a state to dissolve a marriage once the wife “turns 55.”
The phrase “dissolve” a marriage is the one deployed by the lawyers for the same-sex couples to describe the effect of not recognizing a marriage, stripping it of all the legal rights a state confers to spouses.
This reporter honestly could not hear the answer to this question but presumably Hallward-Driemeier said no, it would not be acceptable.
“I’m so glad,” responded Ginsburg.
‘It’s a great day’
1:20 p.m.: After the arguments, the key attorneys stood on the steps of the Supreme Court to answer reporters’ questions.
John J. Bursch, who argued for the states that want same-sex marriage to be decided at the state level, said he was pleased with the way things went. He singled out questions from Kennedy, Breyer and Roberts asking about the role of the justices in deciding an issue that would otherwise be worked out by the people democratically. “Why should we, being the justices, why should the nine of us take this from the society and decide it once and for all and end the debate? Why is that our role?” he said, characterizing their apparent stance.
“Our entire democracy, culture, is built on neighbors sitting down together and peacefully resolving the differences they have about the great questions they have in life. And when the courts take that away, it changes our society for the worse,” he said.
Mary L. Bonauto, attorney for the same-sex couples seeking a national standard, said she was caught off guard by the questions about how ancient societies approached same-sex marriage. “I had a lot of questions about ancient Greece and Rome,” she said. “Not sure how those related exactly to the 14th Amendment, which is what I tried to say.”
But she was prepared for the arguments from the other side that centered on procreation, as well as the tough grilling she got from the justices. Overall, she said, “It’s a great day. There was a time when gay people’s relationships were a love not fit to be named. Yet here we are in the United States Supreme Court, openly talking about that love and commitment and how we want to actually formalize it … it’s a great day.”
So what happens next?
Traditionally, the justices take an informal tally soon after oral arguments. The senior justice in the majority, or the chief justice if he is in the majority, then assigns the case to someone in the majority to write a draft, and months of back and forth will begin.
In major cases, particularly those argued in the spring, a decision is expected toward the end of the term, in mid- to late June.
Learn more about the case and its possible fallout:
Jim Obergefell didn’t want to be the face of a movement, but he married his husband, John Arthur, three months and 11 days before Arthur died from ALS. He wants to be on Arthur’s death certificate as the surviving spouse, but the state of Ohio opposes that. Here’s the story of the life that led his name to be on the case.
This case is also a showdown between Justices Anthony M. Kennedy and Antonin Scalia, who were born in the same year, chosen by the same president and live on the same Northern Virginia street. But they’re sharply divided by how the Constitution protects gay citizens. Kennedy has written all of the Supreme Court’s most important decisions on gay rights.
The stakes are high for many states. Twenty-two states have had same-sex-marriage bans struck down by federal courts, and a ruling against the right to marriage would spark fresh litigation and new fights in state capitals. Get a look at how different states could handle such a ruling here.
Ryan Anderson is 33 and the new voice for those who resent being labeled hopelessly old-fashioned — or, worse, bigoted — for believing that marriage should be only between a man and a woman.
A recent Washington Post-ABC poll showed that 61 percent of Americans support allowing gays to marry and 35 percent are opposed. Support is up only slightly from last year but is a reversal from public sentiment a decade ago, when opponents outnumbered supporters 58 percent to 39 percent.