Supreme Court doesn't tip hand: asks tough questions of both sides in marriage case

Washington D.C., Apr 28, 2015 / 14:15 pm

U.S. Supreme Court justices asked tough questions of both plaintiffs and respondents at oral arguments on Tuesday in a possibly landmark marriage case that is expected to be decided in June.

"Clearly, the justices were conflicted over this issue," stated the Heritage Foundation's William E. Simon senior fellow Ryan Anderson, who attended the April 28 oral arguments before the Supreme Court.

"The first question out of Justice Kennedy was, 'do you want to throw away a millennia-old definition of marriage for 10 years of same-sex marriage?' He was asking questions that I think are a good sign. They suggest his mind is not made up."

The justices heard arguments in Obergefell v. Hodges, part of four marriage cases concerning the constitutionality of state traditional marriage laws. The court will decide, probably in June, whether states must recognize same-sex marriages under the 14th Amendment, and recognize same-sex marriages conducted in other states.

Supporters of both traditional marriage and same-sex marriage packed the sidewalk outside the Supreme Court building in Washington, D.C. to tell the court to rule their way on marriage.

Traditional marriage supporters argued that marriage cannot be redefined and that children should be raised by both a mother and a father. The matter should be left to the people and the states, they added, not decided once and for all by the court when so much disagreement on the matter persists.

Supporters of same-sex marriage said everyone has the right to marry the person they love, and that right cannot wait to be decided by the states but should be recognized immediately by the Supreme Court.

The justices did not reveal a clear consensus toward either side in their questions.

Justice Anthony Kennedy, usually considered a swing vote between the conservative and liberal justices, acknowledged right away that marriage has been defined for "millennia" as between a man and a woman.

Yet in the same statement he remarked, "it was about the same time between Brown and Loving as between Lawrence and this case."

Brown v. Board of Education was a landmark 1954 decision which ruled that state laws allowing racial segregation in schools denied persons equal protection under the law. Loving v. Virginia, 13 years later, overturned Virginia's interracial marriage ban.

Lawrence v. Texas was a 2003 case which overturned Texas' sodomy law, criminalizing private conduct of same-sex persons as an unconstitutional violation of due process of same-sex couples. Kennedy delivered that ruling.

Kennedy later stated, "I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage … it's dignity bestowing, and [same-sex couples] say that want to have that – that same ennoblement." He also questioned whether opposition to same-sex marriage on purely religious grounds was "sufficient."

John Bursch, who represented the states, maintained that "the state's entire interest springs out of the face that we want to forever link children with their biological mom and dad when that's possible."

The justices peppered Mary Bonauto, arguing for the petitioners in the case, with questions about the long-standing recognization of marriage as between a man and a woman. Justice Stephen Breyer acknowledged that the traditional definition of marriage "has been the law everywhere for thousands of years."

He continued, "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."

"Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?" he concluded.

Chief Justice John Roberts echoed the point that the democratic process could decide the issue better than the courts.

"If you prevail here," he told Bonauto, "there will be no more debate. I mean, 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."

Both Justices Scalia and Alito pressed Bonauto and U.S. Solicitor General Donald Verilli, who also argued for the plaintiffs, on religious liberty concerns if a constitutional right to marriage was recognized by the court.

Verilli did later admit that "it's certainly going to be an issue" for colleges who oppose same-sex marriage to keep their tax-exempt status if the court ruled in favor of a constitutional right to same-sex marriage.

The justices also questioned the argument against same-sex marriage, asking how allowing marriage benefits to same-sex couples would take away from married opposite-sex couples.

Marriage rights have also been granted in the past to persons who did not enjoy the right before, such as interracial couples or prisoners, noted Justices Elena Kagan and Sonya Sotomayor.

Ryan Anderson highlighted the judges' asking hard questions of both sides as more evidence that the court should not decide the issue, but leave it to the democratic process and the states.

"The nine justices on the Supreme Court don't have any more great insight than ordinary citizens do as to which marriage policy will serve the 50 states best," he said after the arguments.

"If the Court is to be consistent with its marriage ruling from just two years ago, then the Court must uphold state marriage laws defining marriage as the union of husband and wife. Nothing in the Constitution requires all 50 states to redefine marriage."

Archbishop Joseph Kurtz of Louisville, who is president of the U.S. bishops conference, commented that "today is a moment of great consequence. Marriage is a perennial institution, with deep roots in who we are and in our nation's culture and laws. Marriage is and always will be the union between one man and one woman. This truth is inseparable from the duty to honor the God-given dignity of every human person."

"We pray that the justices will uphold the responsibility of states to protect the beautiful truth of marriage, which concerns the essential well-being of the nation, especially children. Children have a basic right, wherever possible, to know and be loved by their mother and father together. The Church will always defend this right and looks to people of good will to continue this debate with charity and civility," the archbishop concluded.