Obergefell v. Hodges - Part 2, Oral Argument

The topics touched upon ranged from the sexual mores of ancient Greece to the marital practices of the Kalihari bushmen, to incest and the importance of child rearing; Justice Kennedy, Mary L. Bonauto, and Solicitor General Donald Verrilli had the opportunity to wax poetic; and Justice Ginsberg allegedly "eviscerated" John Bursch, the attorney arguing against same-sex marriage:


For those of you who are curious, you can review the entire transcript here.

In summary, most reporters commented on a few common themes, the main ones of which were the “weight of history” bearing on the conservative members, the importance of Justice Kennedy as the presumed swing vote, and Justice Roberts’ innate conservatism conflicting with his not wanting to be on the "wrong side of history."

(To view the actual articles referred to, click on the highlighted name or article).

Basic Arguments and Facts

Before getting into the interesting aspects of the oral arguments, it is helpful to know the legal arguments of each side, which Mark Sherman. of the Associated Press, has concisely summarized:

The arguments of marriage-rights supporters boil down to a claim that states lack any valid reason to deny the right to marry, which the court has earlier described as fundamental to the pursuit of happiness. They say state laws that allow only some people to marry violate the Constitution’s guarantee of equal protection under the law and make second-class citizens of same-sex couples and their families. Same-sex couples say that preventing them from marrying is akin to a past ban on interracial marriage, which the Supreme Court struck down in 1967.

The states respond that they have always set the rules for marriage and that voters in many states have backed, sometimes overwhelmingly, changes to their constitutions to limit marriage to a man and a woman. They say a lively national debate is underway and there is no reason for courts to impose a solution that should be left to the political process. The states also argue that they have a good reason to keep defining marriage as they do. Because only heterosexual couples can produce children, it is in the states’ interest to make marriage laws that encourage those couples to enter a union that supports raising children.

Sherman also answers the questions of where is same-sex marriage legal and how many married same-sex couples are there in the U.S.:

Same-sex couples can marry in 36 states, the District of Columbia and parts of Missouri. More than 500 marriage licenses were issued to same-sex couples in Alabama this year after a federal court struck down the state’s ban.  But probate judges have not issued any more licenses to gay and lesbian couples since the Alabama Supreme Court ordered a halt to same-sex unions in early March.

Gay and lesbian couples may not marry in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, most of Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas.

Gary Gates, an expert at UCLA’s Williams Institute on the demography of gays and lesbians in the U.S., estimated that there were 350,000 married same-sex couples as of February.  Gates relied on Gallup Inc. survey data and Census Bureau information to arrive at his estimate. That’s just 0.3 percent of the nation’s 242 million adults, Gates said.  Almost as many same-sex couples are unmarried, Gates said.

Weight of History

Peter Baker, in the New York Times‘Millennia’ of Marriage Being Between Man and Woman Weigh on Justices (April 28, 2015), wrote:

For thousands of years, in societies around the globe, marriage has meant the union of a man and a woman. “And suddenly,” said Justice Stephen G. Breyer, “you want nine people outside the ballot box” to change that by judicial fiat.

History weighed heavily on the nine members of the Supreme Court on Tuesday as they debated whether the Constitution guarantees gays and lesbians the right to marry.  That even Justice Breyer, clearly a supporter of same-sex marriage, felt compelled to take note underscored the magnitude of the issue before the court.

With intellectual side trips to Plato’s Greece and the land of the Kalahari Bushmen, Tuesday’s arguments challenged the justices to decide whether they are ready or willing to overturn not just legal doctrine but also embedded traditions in the name of equal rights. At what point do thousands of years no longer determine right and wrong? And if what was wrong is now right, is it up to them, instead of voters and legislators, to say that?....

The prospect of breaking so decisively from the past struck not just Justice Breyer but also several of his colleagues, who repeatedly noted the longevity of the institution they had been asked to address.

“The word that keeps coming back to me in this case is millennia,” said Justice Anthony M. Kennedy, widely considered the swing vote.

“Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife,” said Chief Justice John G. Roberts Jr.

“As far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex,” Justice Samuel A. Alito Jr. said.

“You’re asking us to decide it for this society when no other society until 2001 ever had it,” added Justice Antonin Scalia.

Justice Kennedy noted that the Kalahari people of southern Africa, without a modern government like that in the United States, defined marriage as between a man and a woman. Justice Alito argued that even ancient Greeks, who engaged in same-sex relationships, did not extend marriage to them.

Against this concern, advocates for same-sex marriage pressed their point that history, by itself, was hardly the only guide. Justice Ruth Bader Ginsburg noted that women were deemed under law to be subordinate in marriage for centuries. Several justices noted that blacks and whites were not allowed to marry in some states until the court intervened in 1967....

“Times can blind, and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded,” Mary L. Bonauto, a lawyer representing plaintiffs suing to overturn state bans on same-sex marriage, told the justices.

And Justice Breyer seemed to answer his own concern later in the oral arguments when he argued that history, even thousands of years of it, might not be enough to justify excluding gays and lesbians from what he suggested was a fundamental right. “The answer we get is, well, people have always done it,” he said. “You know, you could have answered that one the same way we talk about racial segregation.”

Amy Davidson in the New Yorker wrote:

Why now?  And why are we the ones who should make the decision?  Those were the questions that the four conservative Justices on the Supreme Court and, to an extent, the presumed swing voter, Anthony Kennedy, asked early on in the oral arguments in Obergefell v. Hodges, a case that has the potential to establish a constitutional right to same-sex marriage in all fifty states.  Both questions, though, were overtaken by third: What about the children? And, in debating that, at the end of two and a half hours of back and forth, it sounded like marriage equality was headed for a win.

Bonauto’s answer [to the questions about history] was twofold: to talk about how marriage had changed in many other ways in those millennia; and to argue that the proper time and place to look at was not every corner of the world but the United States, with its specific promises of equal protection and due process under the Fourteenth Amendment....

Chief Justice John Roberts spoke as if he wished that same-sex couples had had the good graces to realize that their time had not yet come.  They had not, he suggested, done enough to win over their neighbors.  He mentioned Maine, where a law opposing same-sex marriage passed in 2009, only to be followed, in 2012, by a ballot initiative allowing it.  Couldn’t everyone do that?  This is a central argument of the anti-marriage side: that judges should not be the deciders—and that sensible gay and lesbian people should not want them to be.  “If you prevail here, there will be no more debate,” Roberts said, in a tone of sympathetic condescension. “I mean, closing of debate can close minds, and it will have a consequence on how this new institution is, is accepted.  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.”

These observations seemed to belong to another time; the country that the justices were talking about has already changed.  Thirty-six states now allow same-sex marriage.  Fifty-nine per cent of Americans, according to a recent NBC/Wall Street Journal poll, support same-sex marriage....

There were legal as well as rhetorical reasons for insisting on the goodness of the people who don’t want gays and lesbians to marry. ...

John Bursch, the lawyer arguing against same-sex marriage, ... explained that the state intended to limit marriage to heterosexual couples because they were the ones who could produce biological children together, and a wedding would “bind” both parents to those potential children.  Justices Breyer, Ginsburg, Kagan, and Sotomayor all asked him, repeatedly, how extending marriage to same-sex couples would hurt that goal.  His answer was, roughly, that heterosexual parents would be more likely to abandon their children if there was a societal idea that marriage might just be about grownup love.

As the liberal Justices pointed out, though, marriage has never been conditioned on one’s ability to have a biological child.  Ginsburg noted that a seventy-year-old couple could marry, and the court has held up the right of prisoners to do so.  Bursch’s cartoon about the meaning of gay marriage and the motives behind it — that it is all about adult satisfaction — is not in keeping with the pro-marriage side’s legal arguments, which have to do with the formation of households and equal protection, or with the motives of the plaintiffs in the case.  The Michigan plaintiffs are two women who have adopted four special-needs children but, because of the state’s marriage ban, do not each have full parental rights to them.  Bursch asked the court to “imagine a world today where we had no marriage at all.  Men and women would still be getting together and creating children, but they wouldn’t be attached to each other in any social institution.”  He suggested that this would be a dark place.

That, though, is precisely the world in which many same-sex parents now must live—and one where their children lack the protection they deserve.  Donald Verrilli, the solicitor general, who also got time to argue for the plaintiffs, made the point that the anti-same-sex marriage side’s focus on children was “quite ironic” given that “today, hundreds of thousands of children are being raised in same-sex households.…  Those hundreds of thousands of children don’t get the stabilizing structure and the many benefits of marriage.”

Kennedy, in previous marriage cases, has shown a particular interest in the welfare of these children. In the Windsor decision, he wrote that DOMA should fall, in part, because it “humiliates tens of thousands of children now being raised by same-sex couples.”  He told Bursch, “Under your view, it would be very difficult for same­-sex couples to adopt some of these children.”  In what may have been the key moment in the entire decades-long fight, he added,  “I think the argument cuts quite against you.”  When Bursch referred, not for the first time, to “different belief systems” regarding children, which, he suggested, were associated with heterosexual and same-sex marriage, it became clear that he had lost Kennedy, who said, “But that assumes that same-sex couples could not have the more noble purpose, and that’s the whole point.”

If Kennedy started out talking about “millennia” and “time,” he ended on “dignity” and “children.”  Verilli, in a powerful closing, answered the questions of why now, and why the Justices, this way.  The opponents of marriage, he said, were now willing to let gays and lesbians live openly — “Marriage, though, not yet. Leave that to be worked out later.”  At that, Scalia interrupted to say, “Or not.”  Verilli, undeterred, continued.   “But what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now,” he said.  “And it is emphatically the duty of this Court, in this case … to decide what the Fourteenth Amendment requires.”  This is the time because the plaintiffs had come to Court, asking for what belonged to them and their children—and the Justices could not turn them away.

The Justices

According to David Kurtz:

The nine justices fell along mostly predictable ideological lines, with the inscrutable Justice Anthony Kennedy seeming the most in play, as had been expected from the outset.  The four liberal justices seemed clearly inclined to rule that the bans on gay marriage were unconstitutional on equal protection grounds.  Elena Kagan and Sonia Sotomayor were particularly vocal during the questioning.  Samuel Alito was the most vocal of the conservative justices, although Chief Justice Roberts and Antonin Scalia were consistently engaged.  As is his custom, Clarence Thomas did not speak during the oral arguments.

Sandhya Somashekhar, for the Washington Post, raised the issue of how the liberal and conservative justices used dramatically different counterfactuals:

Proponents of a national right to same-sex marriage have argued over and over that the answer to the question of who decides about marriage is simple: People decide whom they want to marry, not the government or anyone else.

But the justices tested this contention by bringing up consensual forms of marriage that are limited or banned, such as plural marriage, marriage between blood relatives and marriage that involves minors.  Some of the conservative justices asked:  Would rules governing these factors also come into question if states are forced to allow same-sex couples to marry?

It’s true, marriage laws vary significantly on the other matters.  While every state bars marriage between more than two individuals, it is accepted practice in some countries.  New Hampshire allows girls as young as 13 and boys as young as 14 to marry with parental consent, while others peg the age at closer to 15 or 16.  Some states recognize first-cousin marriages from out of state while others do not.

The liberal justices were more inclined to bring up anti-miscegenation laws, which barred or limited interracial marriages.  These laws were invalidated after the famous 1967 Loving v. Virginia ruling, which has been cited as precedent by same-sex marriage supporters.

In the following extract, Adam Liptak for the New York Times speculates about how the Chief Justice may vote:

In a telling moment at Tuesday’s Supreme Court arguments over same-sex marriage, Chief Justice John G. Roberts Jr. suggested that he may have found a way to cast a vote in favor of the gay and lesbian couples in the case.

“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “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?” ....

It could allow Chief Justice Roberts to be part of a 6-to-3 decision, maintaining some control over the court he leads and avoiding accusations from gay rights groups that he was on the wrong side of history....

Having raised the point that prompted the discussion, Chief Justice Roberts did not pursue it.  But if he wants to vote in favor of same-sex marriage, he may have found a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation.

Linda Greenhouse, in her Op-Ed for the New York Times, drew meaning from an exchange between the Chief Justice and Solicitor General Verrilli:

Shortly before Mr. Verrilli rose for his 15 minutes at the lectern to argue for same-sex marriage on behalf of the Obama administration, Chief Justice Roberts had remarked to Mary L. Bonauto, the lawyer for the couples in the four cases before the court, that events were, after all, moving in her direction.  His implication was that she and her clients should be patient, and for their own good.  “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,” the chief justice said.

It was a comment, not a question, and one not even addressed to the solicitor general.  But Mr. Verrilli, an experienced Supreme Court advocate well before he became the government’s top appellate lawyer, seized on it as an invitation to frame his own argument.  In the transcript, his response takes up a rare uninterrupted paragraph that is worth quoting in full:

“I think it’s important to understand that if this Court concludes that this issue should be left to the political process, what the Court will be saying is that the demeaning, second-class status that gay and lesbian couples now inhabit in states that do not provide for marriage is consistent with the equal protection of the laws.  That is not a wait-and-see.  That is a validation.”

In other words:  It’s too late for wait-and-see.  By staying its hand at this point, Solicitor General Verrilli went on to explain, the court would leave the country with “something that will approximate the nation as a house divided that we had with de jure racial segregation.”

It’s too late for wait-and-see because the country has already traveled so far down the road to marriage equality, with hundreds of thousands of children being raised by same-sex parents, with hundreds of major corporate employers signing on to the cause in a brief filed with the court, with approval of same-sex marriage surging in the polls.  “I don’t know what the latest opinion polls show,” Chief Justice Roberts mused during the argument.  O.K., let's tell him:  61 percent approval and climbing, as of last week.

As the justices surely know, the Supreme Court itself has been a partner in this great social revolution.  It didn’t look that way not so long ago.  In 1972, in a case called Baker v. Nelson, the justices voted unanimously to dismiss out of hand a claim brought by a student leader at the University of Minnesota, Jack Baker, for the constitutional right to marry the man who would become his life partner, James McConnell.  “The appeal is dismissed for want of a substantial federal question,” was all the court had to say about the case....

How did the Supreme Court relegate Baker v. Nelson to the junkyard of history without ever saying explicitly that it was doing so?  Judge Posner’s invocation of the intervening decisions provides part of the answer.  But it’s not the whole story (nor am I suggesting that he thinks it is).  What happened was that a powerful social movement propelled the issue and placed itself in dialogue with the courts.  There were setbacks, to be sure, but incrementally, inexorably, in the hands of some brilliant social movement strategists and some judges willing to hear them, constitutional change happened.

In just about every article, Justice Kennedy’s name has been mentioned prominently.  For example, Robert Barnes and Fred Barbash write in the Washington Post:

The Supreme Court’s historic consideration Tuesday of whether the Constitution protects the right of same-sex couples nationwide to marry seemed to come down to a familiar arbiter:  Justice Anthony M. Kennedy.

That’s normally a safe haven for gay rights activists — Kennedy has written each of the court’s major victories advancing their movement.  But the question after the hearing seemed to be whether forcing reluctant states to allow same-sex unions was a logical extension of the court’s rulings or too much, too fast.

Kennedy seemed to be working it out.  On the one hand, he pressed lawyer Mary L. Bonauto, representing gay couples challenging states’ bans, to explain why the court should change the tradition of marriage as only between a man and a woman when the concept of same-sex marriage is so new.

“This definition [of traditional marriage] has been with us for millennia,” Kennedy said. “And it’s very difficult for the court to say, ‘Oh, well, we know better.’ ”

But by the end of the arguments, questioning John Bursch, the attorney representing four states that want to keep restrictive laws, Kennedy sounded more like one of the lyrical passages in one of his opinions.

 “Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage,” Kennedy told Bursch.  “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.”

Mark Sherman for the Associated Press also talks about Kennedy:

Pivotal Justice Anthony Kennedy, whose vote could decide the same-sex marriage issue for the nation, did not tip his hand Tuesday in historic arguments at the Supreme Court.  But Kennedy’s record on the issue could give encouragement to gay and lesbian couples.

As advocates and protesters demonstrated outside, the author of the court’s three prior gay rights rulings talked about the touchstones of dignity and concern for children in same-sex households that drove his favorable earlier opinions.

But he also worried about changing the definition of marriage from the union of a man and a woman, a meaning that he said has existed for “millennia-plus time.”

“It’s very difficult for the court to say ‘We know better’” after barely a decade of experience with same-sex marriage in the United States, Kennedy told Mary Bonauto, a lawyer representing same-sex couples.

The 78-year-old justice’s likely role as a key, perhaps decisive vote was reinforced during arguments that lasted 2½ hours in a rapt courtroom and appeared to divide the court’s liberal and conservative justices over whether the Constitution gives same-sex couples the right to marry.

According to Garrett Epps, writing for The Atlantic:

Kennedy, whose respect for federalism is oceanic, seemed uninterested in the question of a state’s sovereign prerogative to exclude same-sex couples from the institution of marriage.  But the tide of argument truly seemed to turn when Bursch tried to give shape to the phantom menace posed by same-sex marriage; the only real danger he could point to was that fewer straight couples would marry or stay married, which would lead to more children not being raised by their biological parents.  “The out-of-wedlock birth rate in this country has gone from 10 percent to 40 percent from 1970 to today,” he said.

And here the trouble began.  “Under your view, it would be difficult for same-sex couples to adopt some of these children,” Kennedy said.  “I think the argument cuts quite against you.”

Treacherous ground, indeed.  Kennedy built much of his opinion in Windsor v. United States, the Defense of Marriage Act case, around the damage done to adopted children when the federal government refused to recognize their parents’ marriages.  And Roberts, who is most likely in the pro-traditional-marriage camp, is the father of two adopted children.  Bursch repeatedly came close to suggesting that adopted families were not as valuable to the state as intact biological ones.

And then, inexplicably, Bursch made one of the worst mistakes imaginable.  He attacked Kennedy’s favorite term, “dignity.”  Same-sex couples were trying to redefine marriage, he said.  “What they are asking you to do, is to take an institution that was never supposed to be dignity-bestowing and make it dignity-bestowing.”

Gays and lesbians want to love, and commit, and live in dignity among their neighbors, Bursch’s argument suggested.  And the state could not care less about that sort of hearts-and-flowers nonsense.

Kennedy seemed almost stunned.  “I don’t understand this ‘not dignity-bestowing,’” he said.  “I thought that was the whole purpose of marriage ... It’s dignity-bestowing, and these parties say they want to have that same ... ennoblement.”

“Dignity may have grown up around marriage as a cultural thing, but the state has no interest in bestowing or taking dignity from anyone.”

Bursch may get Kennedy’s vote after that miscue, but it’s hard to see how.  The exchange illustrates again how gays and lesbians have moved into the slot once occupied by their tradition-minded foes.  Gays and lesbians want to love, and commit, and live in dignity among their neighbors, Bursch’s argument suggested.  And the state could not care less about that sort of hearts-and-flowers nonsense.  “The state doesn’t have any interest in love and emotion at all,” he said.

Mark Joseph Stern, a blogger for Slate, believes that, despite the way Kennedy has voted in the past, his vote is “no sure thing.”

He also wrote that “Ruth Bader Ginsburg was on fire”:

Ginsburg, a likely vote in favor of marriage equality, fiercely pushed back against the notion that the definition of marriage has remained unchanged for millennia. Marriage as an egalitarian institution, Ginsburg noted, is a very recent innovation, even in America.  Before the 20th century, men were the dominant partners in marriage, socially and legally; in fact, married women were forbidden from owning property when the 14th Amendment was ratified.  Ginsburg seemed to suggest that same-sex marriage would fit neatly into this new idea of egalitarian marriage, and that endorsing a millennia-old definition of marriage would be supporting an implicitly sexist institution.

Ginsburg also pressed same-sex marriage opponents to explain how legalizing marriage equality could possibly hurt opposite-sex couples. "You are not taking away anything from heterosexual couples,” she said, when the state permits same-sex marriage.  Justice Sonia Sotomayor echoed this point, demanding to know how barring gay couples from marriage could possibly strengthen marriage for opposite-sex couples. "How," she asked, "does withholding marriage from one group—same-sex couples—increase the value [of marriage] to the other group?"  And Justice Stephen Breyer asked why states had any interest in forbidding same-sex marriage, repeatedly noting that marriage is a “fundamental liberty" which "the state offers to almost everyone"—except gay couples.

Dan Roberts, for The Guardian, titled his article, “Ginsberg eviscerates same-sex marriage opponents in court,” and writes:

At a turning point in history where most of the male members of the US supreme court seemed unsure which way to turn, one justice stood out during Tuesday’s hearing on the constitutionality of gay marriage for her spatial awareness.

Ruth Bader Ginsburg has long been a liberal champion – dubbed ‘Notorious RBG’ by her younger fans – for her withering dissent from the court’s increasingly conservative consensus.

But while her preference for supporting equal rights in this case was never in doubt, what was striking on Tuesday was how her willingness to place it along the civil rights continuum allowed her to cut through the argument in a way even the court’s conservative firebrands struggled to do.

“Marriage today is not what it was under the common law tradition, under the civil law tradition,” said Ginsburg when Justices Roberts and Kennedy began to fret about whether the court had a right to challenge centuries of tradition.

“Marriage was a relationship of a dominant male to a subordinate female,” she explained. “That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that state should [still] be allowed to have? To cling to marriage the way it once was?”

“No,” replied John Bursch, the somewhat chastised lawyer for the states who are seeking to preserve their ban on gay marriage.

Bursch was similarly eviscerated by Ginsburg when he tried to argue that the sole purpose of marriage was to ensure a stable relationship for procreation.

“Suppose a couple, 70-year-old couple, comes in and they want to get married?” remarked the 82-year-old Ginsburg, to laughter, after a protracted debate over whether it was fair to ask couples if they wanted children before allowing them to wed.

“You don’t have to ask them any questions. You know they are not going to have any children.”

Conversely she came to the rescue of a lawyer for the petitioners when he floundered on the question of whether states that ban gay marriage should have to recognize weddings carried out in other states.

Would they be allowed to refuse recognition in other cases? Such as where another state allowed the marriages of children after puberty, Justice Alito wanted to know.

“I think, the presumption would be in such a state that someone age 13 can’t consent,” interjected Ginsburg helpfully.

In the end, her bottom line – rejecting the notion that extending marriage rights would somehow weaken the institution – was persuasive enough that even chief justice Roberts appeared sympathetic.

“All of the incentives, all of the benefits that marriage affords would still be available,” said Ginsburg. “So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.”

If this had been a civil injury case, it might have been thrown out right then. Instead, campaigners for marriage equality will have to wait until June to see if Ginsburg’s colleagues see it that way too.

David Kurtz also wrote about Justice Kagan and retired Justice Souter:

It was only five years ago that there was tittering about whether the unmarried and childless Elena Kagan, President Obama's then-nominee to the high court, was gay.  The White House and Kagan supporters felt the need to knock down those rumors. Similar whispering had followed Justice David Souter, a lifelong bachelor who retired from the court in 2009.  Today those seem like echoes of a very distant, and different, time.

Few observers would have guessed then that the court would be considering whether same-sex marriage is a fundamental constitutional right so soon.  In fact, gay rights advocates as recently as late 2012 thought it was premature to press the court for full recognition of marriage equality.

All of the justices, the youngest of whom, Elena Kagan, turned 55 Tuesday, grew up in the time when the notion of equal rights for gay and lesbian Americans was so marginal as to be almost non-existent in the national political dialogue.  Gays and lesbians were stigmatized, and often demonized.  Gay sex acts constituted criminal conduct even when performed in the privacy of one's own home as late as 2003, when the Supreme Court in another landmark case, Lawrence v. Texas, declared anti-sodomy laws unconstitutional.

Mark Jospeh Stern commented that “Alito asks the morning’s most offensive questions”:

When Solicitor General Donald Verrilli approached the bench, Justice Samuel Alito (who opposes a constitutional right to same-sex marriage) asked him a startlingly offensive and exasperating question. "Let's think about two groups of two people," Alito said—a same-sex couple who have lived together for 25 years, and two opposite-sex siblings who have lived together for 25 years. Both groups "share household expenses and chores in the same way." Then Alito dropped the morning's most galling line.

"They care for each other in the same way," he said. "Is there any reason why the law should treat the two groups differently?"

To his great credit, Verrilli did not trip up on the fact that Alito just openly compared same-sex love with sibling incest. Instead, he responded that "marriage is something more fundamental" than two siblings living together—it's about dignity and devotion, not "household expenses and chores."

Alito's question to Verrilli built upon an equally insulting question earlier in the morning. In an exchange with Bonauto, Alito strongly implied that legal same-sex marriage would inevitably lead to legal polygamy. The logic that marriage can be limited "to two people who want to have sexual relations" doesn't hold, he insisted; if gays are permitted to marry, "larger groups," like "two men and two women," must also be allowed to wed. Alito's puzzlingly nasty statements lingered for the remainder of the morning, vividly illustrating how ignorant the arguments against marriage equality can often be. Also discussed all other justices and tried to interpret their comments.

Outspoken Bystanders

Not only were the Justices outspoken, so were two of the bystanders.  The Editorial Board of the New York Times drew meaning from an outburst by someone in the gallery:

The lawyers defending state bans on same-sex marriage before the Supreme Court Tuesday morning tried their best to put a friendly face on their arguments.  But if anyone doubted the depth of the discrimination that gays and lesbians continue to face across America, an outburst partway through the arguments provided a bracing reminder.

At the close of the first half-hour, a man in the back of the gallery began shouting that same-sex marriage violates the teachings of the Bible, and that its supporters will burn in hell.  After he was dragged out kicking and screaming, Justice Antonin Scalia quipped, “It was rather refreshing, actually.”

The heckler’s tirade, which cut through some of the courtroom tension, made one thing clear:  Opponents of marriage equality are not going down without a fight.  And that is a major reason the court needs to resolve, finally, the question it has been dodging for more than four decades: Is there a constitutional right to same-sex marriage?

In 1972, the justices summarily dismissed a petition asking them to grant that right, finding that the case did not present “a substantial federal question.”

Since then, the legal landscape has changed greatly. In 1972, no state permitted same-sex marriages. Today, 36 do, as does the District of Columbia. But 13 states ban it (its status in Alabama is unclear). Couples from four of those states — Kentucky, Tennessee, Ohio and Michigan — are asking the court to rule that the bans violate constitutional guarantees of due process and equal protection....

John Bursch, a special assistant attorney general in Michigan arguing on behalf of his state’s ban, asked the justices to give way to the “democratic process,” which he said “forces neighbors to sit down and civilly discuss an issue and try to persuade each other through reason, love and logic.”

To this naïve and oversimplified view of how state-sponsored discrimination actually works, Justice Elena Kagan had an apt rejoinder:

“Mr. Bursch, we don’t live in a pure democracy,” she said. “We live in a constitutional democracy. And the Constitution imposes limits on what people can do, and this is one of those cases.”

According to Epps:  

Emotion was very much on display in the grand courtroom Wednesday.  Not only were Alito and Scalia seemingly furious at the idea of same-sex marriage, a protester leapt to his feet after Bonauto’s argument and screamed that “you will burn in hell” and that homosexuality was “an abomination.”  

Bill Chappell, blogging for NPR, also commented on the interruption: 

Somebody in the audience — I don't yet know who — got up and started screaming, "If you support gay marriage, you'll burn in hell," and things to that effect.

He was hauled out of the courtroom, but you could hear him for quite a while.

It was just as the government's lawyer, Donald Verrilli, was getting up to argue, and the chief justice said, "Mr. Verrilli, would you like to take a minute?"

He said, "Yes I would," and paused.

There was this pause, and Verrilli took his moment, which was just a matter of seconds.

"It was rather refreshing, actually," Justice Scalia said — so it was a moment of levity as this guy was hauled out.  But then everything reverted to a very serious argument.

Protests are very unusual in high-profile cases, because these seats are highly coveted. Somebody was probably in line for many days to get that seat, and managed to look like a person who wasn't going to cause any trouble.

David Kurtz wrote about another protester:

A protester with a loud speaker stood among protesters on the sidewalk in front of the Supreme Court on the crisp, clear April morning of the hearing, chastising “fornicators” and “masturbators.”  He seemed to revel in the crowd's reaction to his more salacious protestations.  “When you put that penis in that anus, that’s a choice,” he cried.

The Magna Carta and Sexual Orientation

The New York Law Journal ran two editorials, both of which wrote about the theme of liberty in the case in connection to the liberty provided by the Magna Carta.  In "Living Document Represents Freedom to Marry," Meredith R. Miller, President, The LGBT Bar Association of Greater New York, wrote:

Magna Carta has endured as an international symbol of liberty.  The Declaration of Independence and the U.S. Constitution trace their lineage back to this document.  As we await a decision from the U.S. Court in Obergefell v. Hodges, the 800th anniversary of the Great Charter is an encouraging beacon.

In Obergefell, the Supreme Court will soon decide whether the 14th Amendment to the U.S. Constitution requires a state to issue a marriage license to two people of the same sex.  Fundamentally, this is a question about individual liberty — the freedom of two consenting adults to join in marriage.

Lord Bingham wrote: "The significance of Magna Carta lay not only in what it actually said, but in what later generations claimed and believed it has said."  In the spirit of that observation, I will posit that, in broadly representing the principle of liberty, Magna Carta stands for the freedom to marry.

The rebel barons at Runnymede certainly did not reference, let alone contemplate, same-sex marriage.  But part of the legacy of Magna Carta is the appropriation of its broad principles to specific circumstances that the barons did not necessarily contemplate.  After all, the barons' concept of liberty was not a universal one — for example, Magna Carta did very little to address the plight of the majority of the population, the unfree peasantry.

The barons did, however, specifically address the marriage and property rights of noble heiresses and widows.  It is an understatement to observe that the rights and customs of marriage in Medieval England were significantly different than those in the United States in the 21st Century.  As just one example, the monarch could attempt to dictate the marriage of a wealthy widow (and, with that, who would receive her property — remember, women in marriage did not own property).  In light of this custom, Magna Carta, among many other things, proclaimed, "No widow shall be compelled to marry, so long as she wishes to remain without a husband."

Thus, Magna Carta declared a right of women (albeit the noble ones) to have some measure of autonomy regarding marriage and control of their property.  The movement for recognition of same-sex marriage is, at its core, about this very same autonomy.  The freedom from marriage necessarily finds a corollary in the freedom to marry, and both find firm ground in our Constitution.

Magna Carta is a living document; its fundamental precepts have transcended 800 years of shifts in society's norms and customs.  As we await a ruling by the Supreme Court, there is hope that the core promises and covenants of Magna Carta will be reinvigorated, as they have so many times.

In "Marriage Equality: A Branch of the Mighty Oak," Luis A. Gonzalez wrote:

As we celebrate Magna Carta on Law Day 2015, I have chosen to reflect on how the due process protections derived from "the Great Charter" may ultimately support marriage equality in the United States....  There were 63 clauses in the original Magna Carta, many only relevant to its time, but in this writer's opinion, none more important and fruitful than Clause 39:

No free man shall be seized, or imprisoned or deprived or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.

In the 800 years after their memorialization, the words "law of the land" have taken hold and grown roots. Imagine if you will, those roots leading to the growth of the mighty oak of constitutional democracy.  This mighty oak includes the constitutional grant of "due process of law" in the Fifth and 14th Amendments to the U.S. Constitution.  These amendments remain steadfast in providing a guarantee against unequal treatment and the arbitrary denial of life, liberty or property without legal process.  These guarantees, first afforded only to "free men," have expanded in many directions, like branches of a tree, as society evolves and flourishes.

The U.S. Supreme Court has served as a significant vehicle for advancing the protections and rights of individuals.  Article III of the Constitution vests the Supreme Court with the ultimate authority to determine whether laws enacted by Congress and the states comport with the U.S. Constitution, the supreme law of the land.  Throughout the years, application of constitutional principles have evolved along with our societal experiences and knowledge, consistent with our expanded wisdom regarding what we stand for as a country.

In January 2015, the U.S. Supreme Court agreed to hear four cases, on appeal from the Sixth Circuit, addressing the issue of whether the 14th Amendment precludes states from banning same-sex marriage and/or refusing to recognize marriages lawfully licensed and performed in other states.  Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 1039 (2015) (Obergefell cases).  A decision on this issue may further expand one of the branches of civil rights that has been growing out of our mighty oak for over 40 years.

Loving v. Virginia, 388 U.S. 1 (1967) provides a legal background for advancing marriage equality, the issue argued in the Supreme Court this past week.  In Loving, a black woman and a white man from Virginia got married out of state, where their union was legal, and, upon their return to Virginia, the couple was arrested, indicted, and pled guilty to violating Virginia's criminal miscegenation law.  They were sentenced to a year in prison, with the sentence suspended on condition that they not return to the state for 25 years.  The Lovings instituted a class action lawsuit challenging Virginia's statute under the 14th Amendment.  On appeal, the Supreme Court struck down the Virginia statute, and it held that the law violated the Lovings' rights under both the Equal Protection and Due Process clauses of the 14th Amendment.  The decision stated in part:  "[T]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness .… one of the 'basic civil rights of man,' fundamental to our very existence and survival." Id. at 12 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (marriage is "one of the basic civil rights of man") and Maynard v. Hill, 125 U.S. 190 (1888)).

Approximately 35 years later, the Supreme Court was asked to consider the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.  Lawrence v. Texas, 539 U.S. 558 (2003).  The two petitioners in Lawrence were arrested in one of their homes, which the police had entered upon a report of a weapons disturbance, when observed engaging in conduct prohibited by the statute.  The petitioners challenged the Texas statute, and by 6-3 vote, the Supreme Court struck it down.  In doing so, the court overruled its decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and held that the Texas statute violated the Due Process clause of the 14th Amendment.  The decision stated:  "Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education.…  Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."  Id. at 574.

In June 2013, the Supreme Court rendered two decisions which, in conjunction with the decisions in Loving and Lawrence, may provide some clues as to how the Supreme Court will decide the Obergefell cases.  In United States v. Windsor, ___ U.S. ___, 133 S. Ct. 2675 (2013), the court held, by 5-4 decision, that the Defense of Marriage Act, which defined the term "marriage" under federal law as "a legal union between one man and one woman," deprived same sex couples who are legally married under state laws of their Fifth Amendment right to equal protection.  The same day, the court issued a decision in Hollingsworth v. Perry, ___ U.S. ___, 133 S. Ct. 2652 (2013), which involved a challenge to an amendment to the California Constitution, commonly known as Proposition 8, providing that "only marriage between a man and a woman is recognized by California."

In Perry, two same sex couples sued the California state officials responsible for enforcement of the amendment, claiming that it violated their 14th Amendment rights.  When the state officials named in the suit refused to defend the measure, the proponents of the amendment intervened to defend it.  The district court held that Proposition 8 violated both the Due Process and Equal Protection Clauses of the 14th Amendment and permanently enjoined its enforcement.  Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010).  On appeal, the Supreme Court held, by a 5-4 decision, that the proponents of Proposition 8 did not have Article III standing to appeal the district court's decision.  This left the district court's holding intact, in effect killing Proposition 8.

The cases that were argued last week before the Supreme Court may decisively establish that marriages between same-sex couples are constitutionally protected.  Should marriage equality come to pass, it will be but another sturdy branch extending from the mighty oak which was planted 800 years ago in the fields of Runnymede, when those feudal barons took the unprecedented step of sowing the fertile seeds of "the rule of law."

Garret Epps for The Atlantic had an interesting on how "straight" America's views of homosexuality has changed and the irony in some of Bursch's arguments:

Only 35 years ago — a breath in the life of a culture — straight America saw gays and lesbians as forces of sexual anarchy who threatened a nation of happily married couples living in tidy houses with their beloved children.

In states where anti-gay initiatives were on the ballot, TV ads showed lesbians in leather and gays in spangles cavorting across the screen, accompanied by warnings that a “lifestyle” of deviant sex, pedophilia, and bestiality was about to drown us all.

 Flash forward to April 28, 2015. John J. Bursch, the solicitor general of Michigan, explained to the Supreme Court that gay couples should not marry because they are too staid: They stand outside the anarchic swirl of straight sexuality that creates abandoned children and one-parent households.  

Gays and lesbians — bless their naïve hearts — believe that marriage is about love, about commitment, about mutual support in sickness and health as long as we both shall live.  But government, Bursch explained, knows that this is not true.  Bursch was representing four states—Kentucky, Michigan, Ohio, and Tennessee — whose constitutions ban same-sex marriage.  The challengers are residents of those states, all involved in — or survivors of — committed and stable same-sex relationships.  Except for their gender, they are models of the kind of family life Americans once believed to be menaced by the emergence of gay America from the shadows.  But they should not win, Bursch said, because they falsely believe that “that marriage is all about love and commitment. And as a society, we can agree that that's important, but the State doesn't have any interest in that.”

The state’s cold-blooded interest is in chaining up heterosexual couples to make sure they raise their biological children together.  And same-sex marriage might harm that; or at least, no one can prove it won’t.  “If people think ... marriage is more about love and commitment than about staying bound to your children forever, there might be different consequences” from allowing them to enter the legal state of marriage. And those consequences might very well be that “if marriage and creating children don't have anything to do with each other, then what do you expect?  You expect more children outside of marriage.”

The argument was delivered well, but it is a terrible argument. It is an argument that does not deserve to win, and likely won’t.

The Court Will Likely Issue a Narrowly Drawn Decision

Several commentators noticed how little actual law was discussed and that the ultimate decision may be narrowly draw.  Linda Greenhouse, in her Op-Ed for the New York Times, noted:

In the courtroom on Tuesday, there was surprisingly little discussion of legal doctrine – almost none, actually. Was that because formal doctrine – the confusing “tiers of scrutiny” in equal protection analysis, the definition of “fundamental rights” deemed worthy of protection under the Due Process Clause – has little to offer at this point?  Because reality has outpaced doctrine, and the court’s only role is to catch up?  Maybe so.  We’ll have the answer in about two months. Wait and see.

According for Ilya Shapiro, writing for the Cato Institute:

Vindicating conventional wisdom, today’s argument suggested that the Supreme Court will find that states must both recognize and license same sex marriage.  That’s remarkable in and of itself considering that a little over a decade ago, we were still debating whether states could criminalize gay sex.  But it’s not surprising, given that it represents the most rapid transformation in public opinion on any political issue.

What’s more noteworthy is the reason why the Court is poised to rule this way.  While it’s certainly possible that Justice Kennedy will wax metaphysical about the “sweet mystery of marriage,” the majority opinion is more likely to rest on the technical requirements of the Equal Protection Clause.  Given that provision’s enforcement of “equality under the law,” states simply cannot devise a reason to draw their marriage licensing regimes in a way that distinguishes between heterosexual and homosexual couples.

Solicitor General Don Verrilli said it best – that’s possibly the only time I will use those words – when he asked the Court to secure “equal participation in a state-conferred status.”  Moreover, the federal government was wise here – again unprecedented words coming from me – in focusing on the narrow point of equality in the application of state laws.

In sum, the Supreme Court should – and likely will – stay away from pontificating about marriage or philosophizing on the nature of rights.  The Fourteenth Amendment is silent as to marriage, as it is regarding all other possible objects of state regulation.  What it speaks to instead is the equal protection of the laws.  Accordingly, as Cato said in our amicus brief, states must give marriage licenses to gays and lesbians only if they give them to everyone else.

For lawyers and those who follow the law, the elephant in the room that was ignored by everyone was the issue of whether sexual orientation would be considered a protected class, requiring strict scrutiny.  This issue was also ignored by most reporters, but was addressed by Daniel Fisher, writing for Forbes:

One phrase that barely came up during the arguments was “strict scrutiny,” suggesting nobody involved in the case wants the court to find a fundamental right of gay people to marry.  By declaring homosexuality to be a so-called “suspect category” deserving special consideration by courts, like women and racial minorities in other contexts, the court could spawn huge amounts of collateral litigation against businesses and religious institutions accused of discriminating against gays.  That might come as a disappointment to some gay-rights advocates, who were looking forward to a broader decision in this case.

“It’s unlikely this is going to be as sweeping a decision the petitioners thought it might be,” said Mark Phillis, partner with Littler Mendelson in Pittsburgh who focuses on employment law.

Bonauto and U.S. Solicitor General Donald Verrilli “did a pretty good job of limiting their claim only to same sex marriage between two people, and they were grounding it not in a change in the case law,” said Katyal, who’s argued 24 cases before the Supreme Court.

Bonauto opened with her strongest argument: Equal protection under the 14th Amendment requires gay couples have the same right to be married as straight ones.  Otherwise “the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity,” she said.

Bonauto wasn’t able to get far before Justice Ruth Bader Ginsburg interjected a question about the power of states to define marriage, which was reaffirmed in the 2012 decision U.S. v. Windsor, striking down the federal Defense of Marriage Act.  Bonauto said states have the right to govern domestic relations, but not to violate equal protection rights.

Then Chief Justice John Roberts jumped in, saying gay-rights advocates aren’t arguing to join the institution of marriage as much as to change in the “core definition” of what marriage is.  He was followed by  Kennedy, who asked whether judges are the best ones to make fundamental changes in laws backed by thousands of years of custom.

While 10 years have passed between the court struck down anti-sodomy laws in Lawrence vs. Texas, the same amount of time as between Brown vs. Board of Education desegregated schools and Loving vs. Virginia ended laws prohibiting interracial marriages, Kennedy said, that may not be enough to change the meaning of marriage.

“Ten years is, I don’t even know how to count the decimals when we talk about millennia,” he said.

Alito teased out an alternate argument against the gay-marriage bans that Kennedy had cited to overturn a Colorado law in Romer v. Evans in 1995: That the law was written with anti-gay animus.  He asked if the state laws in this case were motivated by bias or an intent to demean gay people.  Bonauto said whatever the primary purpose, that was the effect.

“Well, how do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?” Alito asked.  “Can we infer from that that those nations and those cultures all thought that there was some, rational, practical purpose for defining marriage in that way or is it your argument they were all operating independently based solely on irrational stereotypes and prejudice?”

Bonauto said, essentially, that times and legal standards change, just as they did for sexual discrimination in the 20th century.  Ginsburg came to her rescue by saying it would have been impossible to change the rules of marriage a millennia ago because same-sex couples wouldn’t have opted into an institution marked by the dominance of men over their spouses.

But Kennedy said “I would like to hear the precise answer to the question you’ve been asked several times.”  Breyer chimed in to say her answer should take the form of explaining why the opposite view has been the law everywhere for thousands of years, “and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change what… marriage is to include gay people.”

Bonauto made an individual liberty argument, comparing gay marriage to the right to interracial marriage that was upheld in Loving.

The justices clearly are worried about acting too hastily and sparking decades of acrimonious debate as the court did when it legalized abortion with Roe v. Wade.  Roberts acknowledged that attitudes toward gay marriage are changing rapidly, but said “closing of debate can close minds,” and “it will have a consequence on how this new institution …is accepted.”

“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,” Roberts said.

Alito asked Verrillli why states should treat a gay couple any differently than unmarried siblings who have lived together for years and share household expenses and chores in the same way. What’s the justification for treating them differently when it comes to estate taxes and health benefits?

Verrilli repeated that marriage is “an enduring bond between two people” and then steered off into the argument about child rearing.

Roberts asked whether religious institutions that offer housing would have to allow same-sex couples if the court finds a constitutional right to marriage and Verrilli said there’s no federal law banning such discrimination.  Alito asked if a college could lose its tax-exempt status if it opposed gay marriage. “It’s certainly going to be an issue,” Verrilli said.

Kennedy asked why the government didn’t argue gay marriage is a fundamental right.  Verrilli said that while it’s an important issue, it is defined by equal protection and going further would raise many questions like the one Roberts asked.

Everybody seemed to be trying to get Kennedy’s vote by appealing to individual liberty and dignity, themes that echo through Kennedy’s rulings in Windsor and Lawrence.  Bursch tried a little too hard when he repeated Scalia’s point, that the case isn’t about how to define marriage, but who gets to decide.  He tried to describe that as “every individual’s fundamental liberty interest in deciding the meaning of marriage” but Justice Sonia Sotomayor shot him down, saying “I’m sorry.  Nobody is taking that from anybody.”


As Epps concluded his article in The Atlantic:

And so the long-awaited day in court ended as it began, with the wish of the gay movement nationwide: a simple, deeply conservative yearning to live with the ones they love; to live in the dignity that everyone knows a marriage license brings; to be regular moms and dads and husbands and wives.  That cause may not prevail this spring, but as the argument dissolved, the crowds on the steps had every reason to feel a moment of hope before they returned to their marriages and their lives.

The decision is expected in June.