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USA TODAY's Brad Heath reports on what he saw and heard of oral arguments before the Supreme Court in same-sex marriage cases. H. Darr Beiser, USA TODAY
Same-sex marriage supporter Vin Testa, of Washington, D.C., waves a rainbow pride flag in front of the Supreme Court on Tuesday morning.(Photo: Drew Angerer, Getty Images)
WASHINGTON -- The Supreme Court appeared both cautious and deeply divided Tuesday on whether to change an opposite-sex definition of marriage that several justices said has existed for "millennia."
The court's conservatives indicated within minutes that a victory for same-sex couples on what has emerged as the major civil rights issue of the early 21st century would not come easily, as many had anticipated.
"The word that keeps coming back to me is 'millennia,'" Justice Anthony Kennedy, who often casts the deciding vote on the court, said during oral arguments in the landmark challenge to state laws prohibiting same-sex marriages. "This definition has been with us for millennia. It's very difficult for the court to say, 'Oh well, we know better.'"
LISTEN: Supreme Court oral arguments on gay marriage
Chief Justice John Roberts echoed that point, telling a lawyer for the same-sex couples challenging those bans that "you're not seeking to join that institution, you're seeking to change what the institution is."
But those same justices appeared more willing to find a middle ground when the topic shifted to whether states must recognize same-sex marriages performed legally in other states. That issue would be pertinent only if the court does not find a constitutional right to same-sex marriage.
Justice Samuel Alito wondered whether recognizing out-of-state marriages represented "something in between," adding, "I suppose that's possible, isn't it?"
The early comments from Kennedy and Roberts were a warning that their votes to allow gays and lesbians to marry throughout the nation may be difficult to win. But Kennedy later had equally tough questions and comments for the states seeking to keep their same-sex marriage bans on the books.
When former Michigan solicitor general John Bursch said the rise in out-of-wedlock births showed the decline of 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.
The justices' eventual ruling on the case — actually six cases consolidated from Ohio, Michigan, Tennessee and Kentucky — will determine whether same-sex marriage becomes legal nationwide, or whether states retain the authority to ban it. A decision is expected by late June.
The first hour and a half of arguments revealed a court apparently deeply divided on whether the Constitution requires states to permit gay and lesbian couples to marry. So tense was the debate that when a 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 court's more liberal justices pounced on Bursch, questioning how excluding same-sex couples could harm the relationships of opposite-sex couples. Its more conservative members jousted back with questions about whether the justices should allow voters to settle the issue, or simply adopt a wait-and-see attitude on gay marriage.
A lawyer for the couples challenging the state bans, Mary Bonauto, said they "consign same-sex couples to an outlier status."
The Obama administration's lawyer, Donald Verrilli, urged the court not to wait, telling them instead 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 the equal protection of the laws, and they deserve it now," he said.
The court's more liberal justices sharply questioned whether states could justify blocking same-sex marriages, challenging states' arguments that such laws advance a government interest in connecting children to their biological parents.
"How does withholding marriage from one group increase the value to the other group?" Justice Sonia Sotomayor asked. "The state needs some reason for that exclusion," Justice Elena Kagan said.
Bursch replied that Michigan voters could have 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 is in connecting children to their parents.
Kennedy challenged that reasoning, pressing Bursch on whether states could also prohibit couples who do not intend to have children from getting married, and suggesting that the bans could themselves harm children by blocking same-sex couples from adopting.
Roberts also briefly suggested an alternate approach: Why, he asked Bursch, don't same-sex marriage bans violate the Constitution's long-recognized ban on treating men and women differently?
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.
Those rulings did not resolve the threshold questions in the debate: whether gays and lesbians have a constitutional right to marry, or whether states have the right to ban the practice.
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."
Same-sex marriage supporter Ryan Aquilina, of Washington, DC, holds a sign outside the Supreme Court Tuesday. (Photo: Drew Angerer, Getty Images)
The 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 voter-approved constitutional amendments, most recently in a Michigan case last year that upheld the state's ban against racial preferences in university admissions. But he wrote the 2013 opinion striking down the federal same-sex marriage ban as an affront to the constitutional rights of gays and lesbians.
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.
The 32 plaintiffs in the six cases consolidated before the court illustrate virtually every problem faced by gay and lesbian couples who can't marry or have their marriages recognized, from cradle to grave.
For New Yorkers Joseph Vitale and Robert Talmas, it's keeping both their names on the birth certificate of their adopted son Cooper, who was born in Ohio. Cooper, at 2 the youngest of the plaintiffs, is listed as "Adopted Child Doe" in court papers.
For Cincinnati's Jim Obergefell, it's keeping his name on the death certificate of his late husband John Arthur, who died of Lou Gehrig's disease in 2013. That matters for federal death and disability benefits but, Obergefell says, "It isn't about the money."
For other couples in the case, potential problems are mounting. Tennessee's Valeria Tanco and Sophy Jesty just had their first child last month by artificial insemination. Michigan's April DeBoer and Jayne Rowse recently adopted their fourth child, two of whom have disabilities.
Nearly 140 briefs have been filed on both sides of the issue. The Justice Department has come down on the side of gay marriage; Verrilli, the solicitor general, helped to argue the case. Major business and military leaders are backing gay marriage; religious leaders and a majority of Republican officials support the bans.
While gay marriage proponents have had the bigger megaphone, opponents fought to get their message across.They contended that permitting same-sex marriage could lead to a decline in heterosexual marriage rates, more children raised by single parents -- even more abortions.
Any ruling for gay challengers would make same-sex marriage legal nationwide, adding 13 states to the 37 that already permit it. Two more numbers would rise as well — the number of gay marriages, and the number of challenges from opponents claiming religious objections.
A ruling in favor of the four Midwestern states could lead some of the 22 states in which federal courts struck down gay marriage bans to seek their reinstatement. Eleven states that legalized it legislatively and four where state courts made the call would not be immediately affected.
Gay marriage, state by state: Key rulings
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USA TODAY's Brad Heath reports on what he saw and heard of oral arguments before the Supreme Court in same-sex marriage cases. H. Darr Beiser, USA TODAY
Same-sex marriage supporter Vin Testa, of Washington, D.C., waves a rainbow pride flag in front of the Supreme Court on Tuesday morning.(Photo: Drew Angerer, Getty Images)
WASHINGTON -- The Supreme Court appeared both cautious and deeply divided Tuesday on whether to change an opposite-sex definition of marriage that several justices said has existed for "millennia."
The court's conservatives indicated within minutes that a victory for same-sex couples on what has emerged as the major civil rights issue of the early 21st century would not come easily, as many had anticipated.
"The word that keeps coming back to me is 'millennia,'" Justice Anthony Kennedy, who often casts the deciding vote on the court, said during oral arguments in the landmark challenge to state laws prohibiting same-sex marriages. "This definition has been with us for millennia. It's very difficult for the court to say, 'Oh well, we know better.'"
LISTEN: Supreme Court oral arguments on gay marriage
Chief Justice John Roberts echoed that point, telling a lawyer for the same-sex couples challenging those bans that "you're not seeking to join that institution, you're seeking to change what the institution is."
But those same justices appeared more willing to find a middle ground when the topic shifted to whether states must recognize same-sex marriages performed legally in other states. That issue would be pertinent only if the court does not find a constitutional right to same-sex marriage.
Justice Samuel Alito wondered whether recognizing out-of-state marriages represented "something in between," adding, "I suppose that's possible, isn't it?"
The early comments from Kennedy and Roberts were a warning that their votes to allow gays and lesbians to marry throughout the nation may be difficult to win. But Kennedy later had equally tough questions and comments for the states seeking to keep their same-sex marriage bans on the books.
When former Michigan solicitor general John Bursch said the rise in out-of-wedlock births showed the decline of 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.
The justices' eventual ruling on the case — actually six cases consolidated from Ohio, Michigan, Tennessee and Kentucky — will determine whether same-sex marriage becomes legal nationwide, or whether states retain the authority to ban it. A decision is expected by late June.
The first hour and a half of arguments revealed a court apparently deeply divided on whether the Constitution requires states to permit gay and lesbian couples to marry. So tense was the debate that when a 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 court's more liberal justices pounced on Bursch, questioning how excluding same-sex couples could harm the relationships of opposite-sex couples. Its more conservative members jousted back with questions about whether the justices should allow voters to settle the issue, or simply adopt a wait-and-see attitude on gay marriage.
A lawyer for the couples challenging the state bans, Mary Bonauto, said they "consign same-sex couples to an outlier status."
The Obama administration's lawyer, Donald Verrilli, urged the court not to wait, telling them instead 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 the equal protection of the laws, and they deserve it now," he said.
The court's more liberal justices sharply questioned whether states could justify blocking same-sex marriages, challenging states' arguments that such laws advance a government interest in connecting children to their biological parents.
"How does withholding marriage from one group increase the value to the other group?" Justice Sonia Sotomayor asked. "The state needs some reason for that exclusion," Justice Elena Kagan said.
Bursch replied that Michigan voters could have 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 is in connecting children to their parents.
Kennedy challenged that reasoning, pressing Bursch on whether states could also prohibit couples who do not intend to have children from getting married, and suggesting that the bans could themselves harm children by blocking same-sex couples from adopting.
Roberts also briefly suggested an alternate approach: Why, he asked Bursch, don't same-sex marriage bans violate the Constitution's long-recognized ban on treating men and women differently?
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.
Those rulings did not resolve the threshold questions in the debate: whether gays and lesbians have a constitutional right to marry, or whether states have the right to ban the practice.
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."
Same-sex marriage supporter Ryan Aquilina, of Washington, DC, holds a sign outside the Supreme Court Tuesday. (Photo: Drew Angerer, Getty Images)
The 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 voter-approved constitutional amendments, most recently in a Michigan case last year that upheld the state's ban against racial preferences in university admissions. But he wrote the 2013 opinion striking down the federal same-sex marriage ban as an affront to the constitutional rights of gays and lesbians.
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.
The 32 plaintiffs in the six cases consolidated before the court illustrate virtually every problem faced by gay and lesbian couples who can't marry or have their marriages recognized, from cradle to grave.
For New Yorkers Joseph Vitale and Robert Talmas, it's keeping both their names on the birth certificate of their adopted son Cooper, who was born in Ohio. Cooper, at 2 the youngest of the plaintiffs, is listed as "Adopted Child Doe" in court papers.
For Cincinnati's Jim Obergefell, it's keeping his name on the death certificate of his late husband John Arthur, who died of Lou Gehrig's disease in 2013. That matters for federal death and disability benefits but, Obergefell says, "It isn't about the money."
For other couples in the case, potential problems are mounting. Tennessee's Valeria Tanco and Sophy Jesty just had their first child last month by artificial insemination. Michigan's April DeBoer and Jayne Rowse recently adopted their fourth child, two of whom have disabilities.
Nearly 140 briefs have been filed on both sides of the issue. The Justice Department has come down on the side of gay marriage; Verrilli, the solicitor general, helped to argue the case. Major business and military leaders are backing gay marriage; religious leaders and a majority of Republican officials support the bans.
While gay marriage proponents have had the bigger megaphone, opponents fought to get their message across.They contended that permitting same-sex marriage could lead to a decline in heterosexual marriage rates, more children raised by single parents -- even more abortions.
Any ruling for gay challengers would make same-sex marriage legal nationwide, adding 13 states to the 37 that already permit it. Two more numbers would rise as well — the number of gay marriages, and the number of challenges from opponents claiming religious objections.
A ruling in favor of the four Midwestern states could lead some of the 22 states in which federal courts struck down gay marriage bans to seek their reinstatement. Eleven states that legalized it legislatively and four where state courts made the call would not be immediately affected.
Gay marriage, state by state: Key rulings
Read or Share this story: http://usat.ly/1zjKR1E
USA NOW
Damage in Baltimore as rioters set fires, loot stores
Apr 28, 2015
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