Same-sex marriage divided the Supreme Court on Tuesday in a protracted and at times passionate oral argument that may have tilted, ever so slightly, toward marriage equality.
Justice Anthony Kennedy, the author of past decisions supporting gay rights and widely presumed to be the swing vote once more, hinted at sympathy for same-sex marriage.
“It’s dignity-bestowing,” Kennedy said of marriage in general, adding that gay and lesbian couples “say they want the same ennoblement.”
In 2013, Kenney deployed the term “dignity” numerous times in his decision striking down the Defense of Marriage Act’s prohibition on same-sex couples receiving federal benefits. In 2003, the Sacramento, Calif., native wrote the decision striking down a Texas law banning homosexual sodomy, and in 1996 he wrote a decision striking down a Colorado ballot measure targeting gay rights.
At the same time, Kennedy underscored lingering uncertainties Tuesday when he cautioned that the definition of marriage as being between a man and a woman “has been with us for millennia, and it’s very difficult for the court to say, ‘Oh, well, we know better.’ ”
Amid all the pomp and carnival that accompany landmark court cases, including flag-waving demonstrators outside and a jam-packed press gallery inside, the two-and-a-half-hour oral argument Tuesday revolved around marriage limitations in Kentucky, Ohio, Tennessee and Michigan.
Each of the states has restricted marriage in a variety of ways. In 2004, for instance, 74.5 percent of Kentucky voters ratified a state constitutional amendment that declares only marriage between “one man and one woman” to be valid.
Questions and statements from the other justices Tuesday showed the rest of the court split along customary lines, with Republican-appointed conservatives opposing same-sex marriage and Democratic-appointed liberals supporting it.
“There’s a right to marry, and that’s fundamental,” Justice Elena Kagan said, citing previous Supreme Court decisions involving prisoners and others, “and everyone should be entitled to it unless there’s a good reason for the state to exclude them.”
Skeptics countered that individual states deserved the opportunity to decide marriage policy.
“People feel very differently about something if they get to vote on it, rather than have it imposed on them by the courts,” Chief Justice John Roberts Jr. said.
Justices addressed two fundamental questions during the argument, which was more than twice as long as the typical Supreme Court hearing.
One is whether the Constitution’s 14th Amendment, which guarantees due process and equal protection of the law, compels states to license same-sex marriages. The other is whether the same constitutional protections require states to recognize same-sex marriages performed elsewhere.
In theory, the court could answer “no” to the first question and “yes” to the second. This would leave intact the laws or lower-court rulings that render same-sex marriages legal in 37 states and the District of Columbia while allowing the remaining states to make their own decisions.
Roberts, intriguingly, suggested that “the first question is a big step,” while the question of requiring states to recognize marriages performed elsewhere might be “pretty straightforward.” The chief justice’s comment raised the possibility that he might join some but not all of a narrow-majority decision backing same-sex marriage.
His conservative colleagues, Antonin Scalia and Samuel Alito, voiced flat-out skepticism, and their votes against same-sex marriage aren’t in doubt.
“I'm concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons,” said Scalia, himself a devout Roman Catholic.
Crowded court
All told, some 400 people fit into the courtroom for the argument, which started shortly after 10 a.m. The audience members included politicians and family members, ranging from California Lt. Gov. Gavin Newsom to Kennedy’s wife, Mary, as well as members of the public, who rotated through temporary seats for as little as five minutes at a time.
The decorum was broken only once, a half-hour into the argument, when a mutton-chop-wearing man stood up and began shouting, “the Bible teaches that if you support gay marriage, you will burn in hell,” before he was forced outside. His shouts could still be heard for several more minutes.
The man was subsequently charged with several offenses, including making “a harangue or oration, or uttering loud, threatening or abusive language in the Supreme Court Building."
Mary L. Bonauto of the group Gay & Lesbian Advocates & Defenders, a longtime advocate making her Supreme Court debut, split time with court veteran Douglas Hallward-Driemeier. Solicitor General Donald Verrilli Jr. represented the Obama administration, which supports same-sex marriage.
Former Michigan Solicitor General John J. Bursch and Joseph L. Whalen, Tennessee’s associate solicitor general, defended the four states’ same-sex marriage prohibitions.
Bursch argued that the state-sanctioned institution of marriage is not “all about love and commitment” but rather “developed to serve purposes that, by their nature, arise from biology.” Citing an increase in the number of out-of-wedlock births, Bursch declared that traditional marriage is required for “keeping kids and their biological moms and dads together whenever possible.”
The argument fell flat with several of the justices, who noted that opposite-sex couples may choose not to have children or may be incapable of it.
The multiple cases heard Tuesday were consolidated under the name Obergefell v. Hodges. Ohio resident James Obergefell’s 2013 marriage in Maryland to his ailing longtime partner, the late John Arthur, wasn’t recognized by the state of Ohio.
Obergefell and more than 30 other gay and lesbian plaintiffs represented in the various lawsuits were in the courtroom, listening closely to an open argument about a formerly hidden subject.
“We had stayed in the closet for 45 years,” recalled Luke Barlowe, a Bardstown, Ky., resident and retired optician who challenged the Kentucky marriage limitations along with his spouse, Jim Meade.
A decision is expected by June 30, the last day of the court’s term.
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