Updated: Jan 4
April 28, 2015
Supporters of same-sex marriages gather outside the US Supreme Court waiting for its decision on April 28, 2014 in Washington, DC. The US Supreme Court is hearing arguments on whether gay couples have a constitutional right to wed -- a potentially historic decision that could see same-sex marriage recognized nationwide. AFP PHOTO / MLADEN ANTONOVMLADEN ANTONOV/AFP/Getty Images
WASHINGTON — The U.S. Supreme Court appeared sharply divided Tuesday over whether gays and lesbians have a constitutional right to marry, during an argument that could be the culmination of a wrenching civil rights battle that has seen public opinion on same-sex marriage swing from nearly unthinkable to broadly acceptable over less than two decades.
Over 2½ hours of oral arguments, the high court’s key swing vote, Justice Anthony Kennedy, appeared to be probing whether to make the final leap in support of a constitutional right to marry, having written each of the high court’s three big prior decisions favoring gay and lesbian rights, including two years ago striking down the federal Defense of Marriage Act.
The court’s decision will either put to rest definitively whether gays and lesbians have a nationwide right to marry or continue a state-by-state battle among the 13 remaining states with marriage bans. Near the start of the session, Kennedy challenged Mary Bonauto, the lawyer representing gay and lesbian couples, to explain why the court should overturn the traditional definition of marriage between one man and one woman that has been with society for “millennia.”
It would be “very difficult for this court to say, 'Oh well, we know better,’” he said.
Later, however, Kennedy challenged the notion that state marriage bans are justified on the basis of procreation, because gays and lesbians are biologically unable to reproduce in a same-sex union. Kennedy asked John Bursch, representing Michigan and other states with same-sex marriage bans, why gay and lesbian couples do not deserve the “same ennoblement” of their relationships that others receive.
For months, gay rights activists have been confident that the court will make same-sex marriage a constitutional right, given that the justices allowed a string of appellate decisions favoring gay and lesbian marriages to stand, paving the way for same-sex marriage to spread rapidly through the nation’s conservative heartland.
Those appellate decisions were based on Kennedy’s sweeping opinion two years ago in U.S. vs. Windsor that struck down the federal Defense of Marriage Act, which denied all federal benefits to same-sex married couples. Kennedy wrote powerfully of the dignity of gay and lesbian people, saying the act relegated such couples to “second-tier marriage” and “humiliates tens of thousands of children.”
Kennedy’s mention of dignity and “ennoblement” again Tuesday led gay rights supporters to believe he will continue his record of expanding gay and lesbian rights through three previous landmark decisions.
Before the Windsor case, Kennedy wrote the majority opinions in Lawrence vs. Texas, striking down state sodomy laws in 2003, and Romer vs. Evans in 1996, which ended Colorado’s voter referendum banning gays from seeking government protection from discrimination.
Tuesday’s hearing, by and large, reflected a deep split between the court’s conservative and liberal wings, ranging from Justice Samuel Alito’s suggestion that allowing same-sex marriage could lead to a right to polygamy to Justice Stephen Breyer’s observation that “marriage is about as basic a right as there is.”
The marriage hearing centered on challenges to marriage bans in Ohio, Michigan, Kentucky and Tennessee that a federal appellate court upheld in November. That ruling was the first from a federal appellate court against same-sex marriage rights, creating a split that beckoned the Supreme Court to resolve the issue.
Bonauto argued that denying marriage to gay and lesbian couples leaves them with a “stain of unworthiness.” But she 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).
Both sides hopeful
Same-sex marriage supporters left the courtroom still confident of victory, although opponents, going in gloomy, emerged more hopeful.
Former San Francisco Mayor Gavin Newsom, now lieutenant governor, who granted marriage licenses to gay and lesbian couples for a brief period at City Hall in 2004, said he believed Kennedy was seeking only to challenge gay rights lawyers to put forward their best defense against the toughest arguments against same-sex marriage.
Kennedy “made some devil’s-advocate remarks” as he did in the Windsor case, Newsom said. But because marriage “has not disintegrated as an institution” since Massachusetts became the first state to allow same-sex marriage more than a decade ago, Newsom added, the arguments against it “are becoming increasingly dull.”
Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco, said the majority, including Kennedy, “expressed tremendous skepticism and even bewilderment” at the procreation argument on which the states based their defense.
“Their main argument boiled down to, 'If same-sex couples can marry, fewer heterosexual couples will be willing to marry and their children will end up without parents to raise them, to which almost the entire court reacted with incredulity,” Kendell said.
But Cathy Ruse, a lawyer with the conservative Family Research Council, said she came out of the courtroom more optimistic than when she went in.
Ruse said the argument that seemed to resonate most with the justices was the idea that the issue should be left to the democratic process, citing Chief Justice John Roberts’ comment that “closing debate closes minds” and that “people feel very differently about something if they have a chance to vote on it.”
The justices also heard arguments on a second question in this case — whether a state that bans same-sex marriage can refuse to recognize same-sex marriages performed elsewhere — but a ruling that finds a fundamental right to marriage would render that issue moot. That debate lacked the energy of the first question, and most of the justices appeared unconvinced.
A decision is expected in late June.
Carolyn Lochhead was the Washington correspondent for the San Francisco Chronicle, where she covered national politics and policy for 27 years. She grew up in Paso Robles (San Luis Obispo County) and graduated from UC Berkeley cum laude in rhetoric and economics. She has a masters of journalism degree from Columbia University. Twitter: @carolynlochhead