Judging, on a hugely important constitutional issue, always brings out a deep, brooding contemplation in Supreme Court Justice Anthony M. Kennedy; it is not agony for him, but it is not a casual or easy thing either. On Tuesday, that characteristic was on full display as Kennedy must surely have realized that his will be the deciding vote on whether same-sex couples are allowed to get married.
From worrying about casting aside a “millennia” of cultural norm and habit about who can marry, to wondering about whether America has had enough time to debate the issue, to a somewhat testy defense of the dignity that gay and lesbian couples would have in marriage, Kennedy appeared to have moved from hesitancy toward acceptance as the Court heard nearly two-and-a-half hours of argument in the cases that are known as Obergefell v. Hodges.
Because Kennedy has led the Court for a generation in expanding the rights of gay people, it was to be expected that virtually all observers would be giving their attention to what he said — or didn’t say — during the unusually long hearing (only briefly disrupted by a shouting spectator who warned the Justices that they would “burn in hell” if they allowed same-sex marriage). At a minimum, it seemed obvious that Kennedy has much pondering yet to do, but he is not — at this stage — a vote against same-sex marriage.
As seven of the other eight Justices took part (Justice Clarence Thomas maintained his usual silence), there were unmistakable signs that those were moving toward a four-to-four split.
From the time early on that Chief Justice John G. Roberts, Jr., seemed to adopt as his own the argument of the states that what the couples are seeking is not a right to enter marriage as it now exists, but instead an effort to force a basic change in the institution itself, the occasional speculation that Roberts might wind up somewhat sympathetic to the couples diminished, if, indeed, it did not vanish altogether.
Justices Samuel A. Alito, Jr., and Antonin Scalia left little doubt that they would not go along with a ruling in favor of equal access to marriage; presumably, Justice Thomas would join with them and the Chief Justice to make a fourth.
Equally without doubt was that the Court’s four more liberal members were sympathetic to the couples. In fact, their concentrated effort went far toward undercutting the core argument that the states have come to rely upon in defending their bans: that marriage is basically an institution that exists to create a deep family bond between children and a mother and father, and that the institution as such will be destroyed if its definition is expanded, with an explosion of out-of-wedlock births of children.
The states’ lawyer, John J. Bursch of Michigan, insisted repeatedly that the states, in maintaining their bans, were not trying to demean same-sex couples, and were not trying to take any dignity away from them as committed partners. But his portrayal of same-sex marriage was as an adult commitment to another person out of love and attraction, rather than a true dedication to bringing children into the world and nurturing them in a traditional family.
“The state’s entire interest,” Bursch said, “springs out of the fact that we want to forever link children with their biological mom and dad when that’s possible.”
Warming to his subject, the states’ lawyer dismissed the aspiration of gays and lesbians to marry as merely a desire to use the institution of marriage to “make it dignitary bestowing.” That, he said, “is their whole argument.”
Justice Kennedy, somewhat impatiently, interrupted. “I don’t understand this ‘not dignity bestowing.’ 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 these parties say they want to have that, that same ennoblement.”
This was a danger sign for the states’ argument. It recalled the extensive commentary by Justice Kennedy, in the Court’s last same-sex marriage decision (United States v. Windsor) two years ago, about the need of the federal government to show respect for the dignity of gays and lesbians when they are allowed to join in marriage.
It was clear that Kennedy, at least, was somewhat uncomfortable about the narrow definition that Bursch was insisting on giving to marriage. And that emphasis in Bursch’s argument also provided a very clear opening for a strong closing argument by the couples’ lawyer, Mary L. Bonauto of Boston.
Bonauto summed up: “I have to say, one casualty of the marriage litigation is an impoverished view of what is marriage, and what is the role biological procreation. The state’s entire premise here is that, if same-sex couples marry, then different-sex couples won’t and have their children in a marriage. Those two could not be further apart.”
The couples’ lawyer, in her own time at the lectern, was rigorously questioned by the Chief Justice and by Justices Scalia and Alito. She was treated rather gently by Justice Kennedy, although he made it very clear, at the outset of her argument, that he was genuinely fretting about a sweeping decision that constitutionalized same-sex marriage. Colorfully, he said he could not count the number of zeroes there were in a millennia, noting that that was how long opposite-sex marriage had been the only accepted version.
Solicitor General Donald B. Verrilli, Jr., had a brief time for make the federal government’s case for same-sex marriage, and used soaring rhetoric, comparing the marriage equality movement to the effort to end racial segregation in America. He argued against delaying a decision to allow same-sex marriage, saying that the nation should not repeat the tragic history of blatant discrimination.
The federal government’s view is that the Court should rule in favor of same-sex marriage, based upon the Fourteenth Amendment’s guarantee of legal equality. He had no answer when Justice Kennedy asked him for the government’s views on whether gays should have a right to enter marriage, under the Fourteenth Amendment’s Due Process Clause, because marriage is a fundamental right. The government was not prepared to opine on that issue, Verrilli told Kennedy.
There was otherwise almost no talk during the argument about what constitutional standard the Court might apply in judging the validity of the state’s marriage bans.
The Court had set aside a separate full hour for discussion of a second constitutional issue: whether states were required, by the Fourteenth Amendment to officially give recognition to same-sex couples that were married in other states, then came home to a state that was opposed to their marriage.
The two lawyers who argued the recognition issue — Douglas Hallward-Driemeier of Washington, D.C., for the couples, Joseph F. Whalen of Nashville, for the states — actually did not use all of their allotted time, and the Court’s mood during that second argument was somewhat bland and listless. It appeared that everyone involved — Justices and lawyers alike — accepted that, if the couples were to win on the right-to-marry issue, it would follow that there was nothing left to decide on recognition.
Although there were hints, especially from the Chief Justice, that there might be some movement within the Court to decide the recognition issue, perhaps on the premise that it would be somewhat easier to decide, that did not appear to be the majority’s sentiment. Somewhat surprisingly, Justice Scalia — and, to a degree, Justice Alito — seemed at times to be rather skeptical of Whalen’s arguments in favor of non-recognition of existing same-sex marriages.
Difficult though the marriage question may be for the Court, the prevailing sentiment appeared to be that the Court would, in coming weeks, struggle to find a way to decide that.