- The Washington Times - Tuesday, April 28, 2015

Justices were fractured Tuesday over fundamental questions of society, child-rearing and equal treatment under the law as the Supreme Court struggled with whether the Constitution guarantees same-sex couples the right to marry or if voters should still have the power to say what marriage means within their own state borders.

Justice Anthony M. Kennedy appeared poised to be the court’s key swing vote yet again, peppering both sides with tricky questions, though he saved his most probing ones for defenders of traditional marriage, questioning why same-sex couples didn’t deserve the same “dignity-bestowing … ennoblement.”

The liberal-leaning bloc of justices questioned whether the social problems alleged to flow from same-sex marriage haven’t been disproved by a decade’s worth of experiences in some pioneering states, while the conservative-leaning justices repeatedly searched for limits, speculating that if the court ruled there was an inherent right for someone to marry, it opened the door for polyamory and a host of other combinations beyond couples.

“You’re not seeking to join the institution, you’re seeking to change what the institution is,” Chief Justice John G. Roberts Jr. told Mary L. Bonauto, who argued the case on behalf of gay couples challenging Michigan’s ban on same-sex marriage. “The fundamental core of the institution is the opposite-sex relationship, and you want to introduce into it a same-sex relationship.”

Ms. Bonauto replied that the right to marry is a core freedom protected by the Constitution and that the 14th Amendment means states must submit to that guarantee, which overrides their own concerns. She urged the justices to strike down the state laws in the same way that the court had previously shot down state laws prohibiting interracial marriage.

Ms. Bonauto, who in 2003 won the nation’s first gay marriage case in Massachusetts, said gay couples experience “the stain of unworthiness” when civil marriage is denied them.

Justice Kennedy worried about changing the definition, saying he kept coming back to “millennia-plus time.” Gay marriage has existed in the United States for about a decade, he said, but “when we talk about millennia … I don’t even know how to count the decimals,” he said. “It’s very difficult for the Court to say, ‘Oh, well, we — we know better.’”

Arguments inside the chamber lasted two and a half hours, punctuated by one man’s outburst that homosexuals would “burn in hell for eternity,” while both sides in the heated debate rallied outside the court.

Points of law

The justices were considering two separate questions: Whether the Constitution guarantees a right to marriage to same-sex couples and, if not, whether a same-sex union recognized by one state could be refused recognition by another state.

Lower courts have ruled both ways, leaving it to the justices to settle a question that’s percolated for years. A ruling is expected by the end of June.

“Excluding gay and lesbian couples from marriage demeans the dignity of these couples,” Solicitor General Donald B. Verrilli told the court, arguing the Obama administration’s stance in favor of gay couples. “It demeans their children, and it denies both the couples and their children the stabilizing structure that marriage affords.”

Mr. Verrilli’s appearance on behalf of President Obama completed an about-face for the president, who ran for office in 2008 saying he opposed same-sex marriage. But his stance has evolved since then, along with much of the rest of the country and the world.

No country recognized same-sex marriages until the Netherlands in 2001, but since then, some 17 other countries have followed suit, according to Freedom to Marry, an advocacy group.

In the U.S., 37 states and the District of Columbia have granted marriage rights to same-sex couples — 11 through legislative action and the rest by a court’s decision.

The conservative-leaning justices questioned whether the court should impose a national policy at a time when the states are having such a robust debate already — and whether the decade or so of experience with same-sex marriages trumps the thousands of years of marriage as the union of a man and a woman.

Justice Samuel A. Alito Jr. said limiting marriage to the union of a man and a woman wasn’t an inherent sign of antipathy toward gays, pointing to ancient Greece, where he said Plato and other philosophers approved of homosexual relations, but the culture only recognized opposite-sex marriages.

“I can’t speak to what was happening with the ancient philosophers,” Ms. Bonauto said.

Minutes earlier, under questioning from Justice Alito, Ms. Bonauto said, “Your Honor, my position is that times can blind. It takes time to see stereotypes … “
Justice Ruth Bader Ginsburg jumped in, adding that, until recently, when male-dominant marriages gave way to egalitarian marriages, same-sex unions wouldn’t have “fit into what marriage was once.”

Former Michigan Solicitor General John Bursch, who defended that state’s traditional marriage law before the justices, parried off pointed questions from the liberal justices, who wondered how same-sex marriage hurt opposite-sex couples.

“All of the incentives, all of the benefits that marriage affords, would still be available. So you’re not taking anything away from heterosexual couples,” Justice Ginsburg said.

Mr. Bursch countered that same-sex marriage would distort “the societal understanding of what marriage means.” He said emotional commitment isn’t enough — marriage is about “binding children with their biological mom and dad.”

“How does withholding marriage from one group — same-sex couples — increase the value to the other group?” Justice Sonia Sotomayor wondered.

Mr. Bursch, with helpful prodding from Justice Antonin Scalia, said that under the Supreme Court’s precedents for how to evaluate this kind of case, he didn’t have to show a cheapening value, but only had to prove that there was a rational reason why a state might treat same-sex couples differently than opposite-sex couples.

Still, he said the signal sent by same-sex marriage diminishes the value of marriage.

“Ideas matter, your honors,” he said.

Instituting limits

Justice Kennedy, Justice Ginsburg and Justice Elena Kagan wondered whether states could then limit marriage to couples who will have children.

“Suppose a couple, a 70-year-old couple, comes in and they want to get married,” Justice Ginsburg said, to laughter in the courtroom. “You don’t have to ask them any questions. You know they are not going to have any children.”

Justice Alito, however, pondered the other side: whether, if marriage is simply a recognition of a lasting bond of love and commitment, why that wouldn’t apply to a group of four — two men and two women — who want to marry as a unit, or to two siblings who have lived together for years sharing finances and chores.

The conservative justices also wondered whether a constitutional finding of a right to same-sex marriage would mean clergy could be compelled, against their beliefs, to officiate those unions.

Mr. Verrilli said it would be up to states to decide whether they would force clergy to officiate — though he said states that have legalized same-sex marriage are already facing those questions, regardless of what the Supreme Court does.

“It’s certainly going to be an issue,” he said.

The Supreme Court only overturned state laws outlawing homosexual sex in 2003, in the Lawrence v. Texas case, which overturned a 1986 court ruling.

Two years ago, the court overturned the federal Defense of Marriage Act, which ruled marriage was a union of a man and a woman for federal purposes. In that ruling, a 5-4 court overturned the federal definition, saying the government must recognize marriages properly sanctioned by a state.

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