Supreme Court justices broke along familiar ideological lines Tuesday as they considered whether same-sex couples enjoy a constitutional right to marry, with Justice Anthony Kennedy in a familiar role as the apparent decider in a landmark gay rights case.
Kennedy asked tough questions of both sides.
Why should nine unelected justices change the definition of marriage as only between a man and a woman when that definition has existed for "millennia?" Kennedy asked attorney Mary Bonauto, who is representing gay couples in the case.
On the other end, he questioned John Bursch, representing Michigan and other states with same-sex marriage bans, about their procreation-centered view of marriage. Why do same-sex couples not deserve the "same ennoblement" of their relationships that others receive? he asked.
The solemn, hushed nature of the proceeding was shattered by a protester who shouted that the Bible teaches that those who engage in homosexuality will "burn in hell for eternity." He could be heard shouting for minutes even after security dragged him from the courtroom.
Proponents of same-sex marriage were first at the podium as they challenged laws from Michigan, Ohio, Kentucky and Tennessee. The justices are considering two questions: 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.
Bonauto argued that limiting marriage to a man and a woman deprives gay and lesbian couples of this valued right. To deny it leaves them with a "stain of unworthiness," she said.
Bonauto received a boost from Justice Ruth Bader Ginsburg, who pointed out that legal views of marriage have changed to make them more "egalitarian."
But Bonauto faced repeated questions about the historical nature of marriage as a bond between genders — which Justice Stephen Breyer described as "the law everywhere for thousands of years."
"Suddenly," Breyer said, "you want nine people outside the ballot box to require states to change [this]."
The recognition of such a constitutional right would mark the culmination of an unprecedented upheaval in public opinion about gay rights and a dramatic change in the nation's jurisprudence. Same-sex marriages were practically unheard of in the nation until a Massachusetts court decision cleared the way for unions there just a dozen years ago.
A court decision is expected in late June.
Now, more than 70 percent of Americans live in states where same-sex couples are allowed to marry, according to estimates.
The questions raised in the cases that the court will consider were left unanswered in 2013, when the justices last confronted the issue of same-sex marriage. A slim majority of the court said at the time that a key portion of the federal Defense of Marriage Act (DOMA) — withholding recognition of same-sex marriages — was unconstitutional and in a separate case allowed same-sex marriages to resume in California.
Since then, courts across the nation — with the notable exception of the Cincinnati-based federal appeals court that left intact the restrictions in the four states at issue — have struck down a string of state prohibitions on same-sex marriage, many of them passed by voters in referendums.
Many of those court decisions compared the prohibitions to the ones on interracial marriage that the Supreme Court struck down in 1967 in Loving v. Virginia. Opponents say the right for homosexuals to marry is not found in the Constitution, and thus is left to the democratic process in the individual states.
When the Supreme Court declined to review a clutch of those court decisions in October, same-sex marriage proliferated across the country.
Couples may now marry in 37 states and the District of Columbia.
Public attitudes toward such unions have undergone a remarkable change as well. A recent Washington Post-ABC poll showed a record 61 percent of Americans say they support same-sex marriage. The acceptance is driven by higher margins among the young.
When the justices declined in October to review the string of victories same-sex marriage proponents had won in other parts of the country, it meant the number of states required to allow gay marriages grew dramatically, offering the kind of cultural shift the court often likes to see before approving a fundamental change.
The Michigan case now before the Supreme Court involves the issuance of marriage licenses to gay couples. The cases from Tennessee and Ohio concern whether states must recognize same-sex marriages performed in other states where such unions are legal. And Kentucky offers cases that touch on licensing and recognition.
In the 2013 case striking a key part of DOMA, U.S. v. Windsor, the decision written by Kennedy said the federal government could not refuse to recognize or provide benefits to people in same-sex marriages that were conducted in states where they were legal.
Dozens of lower-court judges nationwide have read Kennedy's opinion — in which he was joined by Justices Ginsburg, Breyer, Sonia Sotomayor and Elena Kagan — to mean that state bans violate constitutional rights as well.
Withholding federal recognition of same-sex married couples, Kennedy wrote in Windsor, places them "in an unstable position of being in second-tier marriages" and "demeans the couple, whose moral and sexual choices the Constitution protects . . . and whose relationship the State has sought to dignify."
Kennedy, who sides with conservatives on most issues, is the pivotal member of the court and has written all of its modern decisions protecting gay rights, including Lawrence v. Texas, which struck down sodomy laws that targeted gay men.
But in his Windsor decision, Kennedy also cited the principles of state autonomy, which states have made central in arguments defending laws and state constitutional amendments defining marriage as only between a man and a woman.
Chief Justice John Roberts, who dissented from Kennedy's opinion, noted in a dissent that the issue of state bans was not before the court. Whether Roberts could be convinced to find in favor of same-sex marriage advocates is one of the intriguing questions of the case.
The current cases will cause Kennedy to balance his support of gay rights with his strong views on federalism. He noted both in his Windsor opinion, and said that DOMA was written to convey moral disapproval of homosexuality and "a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states."
Few thought the issue would return so quickly to the Supreme Court. Within six months of the Windsor decision, the first federal judge had struck down a ban, in Utah. Quickly, judges nationwide, and panels of appeals courts in Richmond (Va.), Denver, Chicago and San Francisco, struck down state bans.
But in November, a panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati upheld the bans in Kentucky, Michigan, Ohio and Tennessee.
Circuit Judge Jeffrey Sutton, writing for himself and Judge Deborah Cook, rejected the Windsor analysis that led other appeals courts to strike down the bans on same-sex marriage.
In his decision, Sutton repeatedly returned to the principle of democratic action, saying advocates of same-sex marriage would be better off by persuading their fellow citizens than by asking federal judges to force the issue.
"When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers," Sutton wrote. "Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way."
The combined cases now before the Supreme Court are Obergefell v. Hodges.
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