- The Washington Times - Wednesday, April 29, 2015

Gay marriage advocates found much to take heart from in Tuesday’s Supreme Court arguments, but there weren’t the slam-dunk endorsements they were hoping to see.

Among the enthusiastic voices was Lorri L. Jean, chief executive of the Los Angeles LGBT Center, who said the arguments “paved the way for the only result that is just: striking down the discriminatory laws that prevent same-sex couples from marrying the person they love.”

The case for marriage “shone through at every turn undimmed and undeniable,” said Evan Wolfson, lawyer and founder of Freedom to Marry.

“As lawyers say, ‘The bench was hot,’” said Jon W. Davidson, national legal director for Lambda Legal.

His conclusion, though, was cool-headed: “It does seem clear that we will not have a unanimous decision,” he said, but “our legal team and our clients were feeling encouraged.”

Supporters of traditional marriage were relieved and bolstered by what they heard at the arguments in Obergefell v. Hodges.

“The positive signs outweighed the negative signs,” lawyer Gene Schaerr told a Heritage Foundation panel Wednesday.

“There may be a glimmer of hope,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network at the Federalist Society.

“I am extremely encouraged by the questioning, especially from Justice [Anthony M.] Kennedy, because it focused on what marriage is,” said constitutional law analyst John Eastman, chairman of the National Organization for Marriage. “We are hopeful that they will find that the Constitution does not prevent traditional-marriage laws” and restore the power to decide the issue of marriage to the people.

News headlines after the 2-hour hearing quickly dampened hopes for a knockout hearing.

“No slam-dunk for same-sex marriage,” said USA Today, while other headlines said the high court was “divided,” “split,” “cautious” and sending “conflicting” signals.

Politico, which ran a headline Tuesday morning about legalizing same-sex marriage as a “foregone conclusion,” walked it back a few hours later, saying “Justices rattle both sides on same-sex marriage.”

Veteran gay-issues reporter Lisa Keen, who founded Keen News Service, said Justice Anthony M. Kennedy’s questions offered “hope — and worry — for both sides.”

“The very first question” from the bench “was about the rights of states to regulate marriage,” Ms. Keen wrote in her Tuesday report.

Although attorneys for same-sex couples tried repeatedly to “refocus attention to the damage that bans on same-sex marriage inflict on the rights of LGBT people,” she wrote, “the focus stayed largely on states’ rights throughout the historic argument.”

At the Heritage panel’s discussion Wednesday, Mr. Schaerr, who argued — but lost — a case for traditional marriage in Utah, said pundits presumed that Justice Kennedy, viewed as a swing vote on this case, “already made up his mind” and was “just waiting for the opportunity to pull the trigger” and show that the high court will soon redefine marriage nationwide.

However, his remarks Tuesday “were not the comments of someone who is waiting to pull the trigger,” Mr. Schaerr said.

Instead, several themes boded well for a ruling to let states continue to decide their marriage laws, he said: Man-woman marriages have existed for “millennia,” even in cultures that accepted homosexuality; the social institution of marriage was created to bind fathers and mothers to the children they bear, not disparage homosexual couples; and the gay couples were not asking to “join” the institution of marriage, but were asking the high court to change the institution.

Ms. Severino focused on the religious liberty issues raised in court, and said the gay couples’ attorneys gave “chilling” responses when asked about how religious people and institutions could be treated in a culture that constitutionally approved of gay marriage.

A real collision with religious liberty could happen over tax-exempt statuses and state licensure of ministers, she said.

One analysis — posted just before the Tuesday arguments began — may still prove prescient.

Referring to Justice Kennedy’s concerns about addressing the harm to gay couples as well as the importance of states’ rights, a possible compromise would be “to allow states to define the requisites for marriages conducted within their borders, but to require them to recognize as valid same-sex marriages performed in states where they are legal,” University of Michigan law professor emeritus Richard Lempert wrote at the Brookings Institution.

“This would require of the state no more than what is required of the federal government” in Windsor v. United States, Mr. Lempert said, referring to the 2013 ruling — written by Justice Kennedy — that struck down the federal Defense of Marriage Act, which defined marriage as the union of a man and a woman for all federal purposes.


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