Supreme Court: Kennedy’s questions offer hope -and worry- for both sides in state marriage ban argument

The very first question from the U.S. Supreme Court bench Tuesday morning was about the rights of states to regulate marriage and, though attorneys for same-sex couples tried numerous times to refocus attention to the damage that bans on same-sex marriage inflict on the rights of LGBT people, the focus stayed largely on states’ rights throughout the historic argument.

For two and a half hours –more than twice the time most cases get—an animated bench grilled attorneys for same-sex couples and the four states that seek to ban their marriages.

Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer asked most of the tough questions to challenge the governmental interest served by banning same-sex couples from marriage. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito asked most of the tough questions to parties seeking to strike down those bans. Per his routine, Justice Clarence Thomas asked no questions, and true to his role as the court’s most unpredictable vote, Justice Anthony Kennedy asked tough questions of both sides.

The packed courtroom was equally lively, laughing frequently, applauding once, and, at one point, a man at the back of the courtroom jumped up and began ranting loudly and incessantly about the Bible, “abominations” and that gays would “burn in hell.” Such outbursts have occurred in the court recently on other issues and the man’s disruption seemed well-timed, given that it did not interrupt any attorney’s allotted time before the bench.

But, as is routine, the justices engaged in a great deal of interrupting attorneys throughout the proceeding.

Mary Bonauto medium

Mary Bonauto

Barely a minute into Gay & Lesbian Advocates & Defenders’ Mary Bonauto’s opening comments about how laws banning same-sex couples from marrying convey a “stain of unworthiness,” Justice Ruth Bader Ginsburg asked how the “federal government’s historic deference to states when it comes to matters of domestic relations” should influence the court’s decision on whether the state bans are unconstitutional. In asking her question, Ginsburg referred to the court’s 2013 landmark decision in U.S. v. Windsor, in which the court emphasized states’ rights to regulate marriage as it struck down the key provision of the federal Defense of Marriage Act (DOMA). DOMA had prohibited the federal government from recognizing marriages licenses granted by some states to same-sex couples.

“States do have primacy over domestic relations except that their laws must respect the constitutional rights of persons, and Windsor couldn’t have been clearer about that,” said Bonauto.“And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.”

Chief Justice John Roberts jumped on Bonauto’s choice of words, saying same-sex couples weren’t seeking the right to “join” marriage but to “redefine” it. That comment echoed a sentiment he expressed in 2013, during oral arguments over California’s Proposition 8 (Hollingsworth v. Perry), and hinted early on that Roberts is not a likely vote in favor of striking down state bans on same-sex marriage.

“Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable,” said Roberts.

Bonauto replied that many things have changed for society over time, for instance, the role of women, but that the equal protection clause of the 14th Amendment to the U.S. Constitution provides “enduring guarantees” to citizens.

Kennedy jumped in next, seeming, at first, to address Roberts’ concern but winding up in a place that seemed to support it. He noted first that it has been about 10 years since the Supreme Court struck down sodomy laws –an amount of time comparable to the time between the court’s decision to strike down state mandated racial segregation of schools (Brown v. Board of Education) and the decision to strike down state laws banning interracial marriages (Loving v. Virginia). But then he compared the 10 years to the “millennia” of years during which people thought of marriage as being between a man and a woman.

“This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better’.”

A few minutes, Ginsburg seemed to respond to Kennedy’s comment when she said to Bonauto:

“You wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible,” said Ginsburg. “Same-­sex unions would not have opted into that pattern of marriage, which was a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.”

“There was a change in the institution of marriage,” said Ginsburg, “to make it egalitarian when it wasn’t egalitarian.”

Justice Scalia soon entered the fray to say the question “is not whether there should be same­-sex marriage, but who should decide the point.”

“And you’re ­ asking us to decide it for this society when no other society until 2001 ever had it,” Scalia told Bonauto.

Justice Alito took the discussion back to ancient Greece, noting that same-sex relationships were accepted then but that there were no marriages between same-sex couples.

“So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?” asked Alito.

Bonauto tried to make the point that a big difference between other cultures and other times is that the United States, from its inception, made “a commitment to individual liberty and equality.”

Justice Breyer questioned the “wait and see” rationale that states offered for denying marriage to same-sex couples. Bonauto noted that states, including Virginia in Loving v. Virginia, offered that same rationale to justify miscegenation laws. The Supreme Court struck down those laws, said Bonauto, even though 80 percent of the public supported such bans and the Supreme Court’s striking down of those laws was considered a “profound change.”

Solicitor General Don Verrilli repeatedly reminded the court that a “wait and see” approach to the issue leaves “the nation as a house divided” in the same way racial segregation did. And leaving the issue to voters, he said, “will be saying is that the demeaning, second­-class status that gay and lesbian couples” in ­­states with bans “is consistent with the equal protection of the laws.”

“That is not a wait-­and­-see,” said Verrilli. “That is a validation.”

John Bursch, a special assistant attorney general from Michigan, argued that the fundamental liberty interest of every individual is at stake in the case –the “liberty interest in deciding the meaning of marriage” through the democratic process. And he said the state’s marriage laws were developed “to serve purposes that, by their nature, arise from biology.”

Just as the question of whether states can ban same-sex marriage seemed to rely largely on how Kennedy will vote, the court seemed similarly split on the question of whether a state can refuse to recognize a marriage license from another state. And Kennedy had only one question on the issue of whether states –if they are allowed to ban same-sex marriages—must at least give recognition to marriage licenses issued to same-sex couples by other states.

Kennedy’s question referred to a hypothetical that Justice Alito posed to attorney Douglas Hallward-Driemeier, representing same-sex couples, about whether states would have to recognize marriage licenses issued by other states to 12-year-olds. Hallward-Driemeier said “probably not” because the state would have an “important interest in protecting the true consent” of the child. Noting that if the court ruled that states have “sufficient” justification to enforce bans against same-sex marriage, why should those states have to “yield” when other states issue marriage licenses to same-sex couples.

It was some time before Hallward-Driemeier eventually answered the question, but it was a dramatic response.

“In the corporate context, once a corporation is established under the laws of one State, that corporation exists in all other States,” said Hallward-Driemeier. “Certainly, the families that our Petitioners have established are entitled to at least that same respect.”

Later still, during his few minutes of rebuttal time, Hallward-Driemeier pointed out that Tennessee law recognizes as a parent a man who is married to a woman who gives birth to a child through the use of alternative insemination, even “though the husband has no biological relationship with the child.”

In response to a suggestion from states seeking to defend the bans that gay married couples simply not move to states that ban same-sex marriage, Hallward-Driemeier notes that one plaintiff couple was ordered to move to Tennessee by the U.S. Army. Another needed to move to Tennessee because the only university that offered both spouses jobs was located in that state.

Valerie Tanco and Sophy Jesty met and married in New York and then moved to Tennessee, where Tanco gave birth to their daughter.               “Now, as a result of the non-recognition laws, when, as occurred last week, their daughter is hospitalized, Tennessee would treat Dr. Jesty not as mom, but as a legal stranger with no right to visit her child, no right to make medical decisions for her. These laws have real import for real people,” said Hallward-Driemeier.

But the overriding concern Tuesday was how the court would rule on the first question: Does the 14th Amendment require a state to license a marriage between two people of the same sex?

Gay legal activists at the argument Tuesday expressed optimism that Kennedy will come through with the majority vote.

Kate Kendell, executive director of the National Center for Lesbian Rights, which helped represent same-sex couples from Tennessee, said she thinks there’s “no doubt” the court will find that states have to recognize other states’ marriages. And she thinks “things look favorable” for striking down state bans on same-sex marriage.

On the Supreme Court plaza after the argument, Kendell acknowledged that Kennedy seemed “more inscrutable here than he was in the DOMA case.”

“He didn’t really tip his hand. He asked difficult questions of both sides,” said Kendell. “But even if it’s sooner than he wants to or the court is not entirely comfortable with it …when push comes to shove, I do not believe this is a justice who is going to allow Romer v. Evans and Lawrence v Texas and the Windsor decision to come up full stop and not have that legacy finished.”

Kennedy wrote the majority decision in all three cases, striking down a voter-approved initiative in Colorado (Romer), striking down state laws banning intimate relations between same-sex couples (Lawrence), and striking down DOMA (Windsor).

Jon Davidson, legal director for Lambda Legal, said he was encouraged by Kennedy’s comparison of Brown and Loving to Lawrence and this appeal, Obergefell v Hodges. And Davidson said he thought it “odd” that Alito “tried to make this point about Greece.”

“Sometimes, it just seems like they’re playing with you,” said Davidson.

“I was surprised that they focused so much at the beginning about this millennia this or that –that’s not how you decide the law. That’s not the basis for constitutional jurisprudence,” said Abby Rubenfeld, former legal director for Lambda Legal and one of the attorneys representing plaintiffs from the Tennessee case.

Rubenfeld said she was pleasantly surprised to hear Chief Justice Roberts ask “an interesting sex discrimination question.”

In questioning John Bursch, special assistant attorney general for Michigan, Roberts said he wasn’t sure it was necessary to get into the issue of sexual orientation discrimination to resolve the case.

“If Sue loves Joe, and Tom loves Joe, Sue can marry him and Tom can’t,” said Roberts. “And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

Bursch said laws banning same-sex couples from marrying do not treat classes of men and women differently. And, he said, a 2001 Supreme Court ruling in Nguyen v. INS held that “it’s appropriate to draw lines based on sex if it’s related to biology.”(Justice Kennedy wrote that 5 to 4 majority opinion, saying a law that provided citizenship to children if their biological mothers were American, but not if only their fathers were American, was unconstitutional.)

Ginsburg interjected that the reason behind that sex discrimination was that “we know who the [biological] mother is” and the was intended to avoid the possibility that a man might claim to be the father of a child just to gain some benefits.

If the state bans on same-sex marriage were seen as sex discrimination, the court would impose a higher standard of judicial scrutiny than mere rational basis. Laws disadvantaging people based on gender must be justified with –not just a rational reason but—an important governmental interest. Interestingly, there was little else discussed about what level of scrutiny the court should apply in deciding the issue of the state bans.

Evan Wolfson, head of the national Freedom to Marry organization, said Justice Kennedy’s questions “invited our advocates to make the case about the newness and relative evolution” of the issue.

“He also asked key questions about the kids. He pointed out the illogic of some of the state’s positions. And at the end of the day,” said Wolfson, “arguments are arguments and what counts is what they’re going to go back and do, read these briefs, and write the arguments, build on the law, and write the opinion. And Justice Kennedy has a long and serious legacy to build on here and I hope he does the right thing.”

The wait and see begins

Today’s argument concerned bans in four states –Kentucky, Michigan, Ohio, and Tennessee, but the decision will impact nine other states that currently enforce bans against same-sex marriage. If the court upholds the bans, another 10 states that had to temporarily suspend their bans could reinstate them.

Today, same-sex couples can obtain marriage licenses in 37 states. In June, if the court strikes down the bans, that could quickly become 50.

The court might split the baby and decide states can ban same-sex marriage but must recognize marriage licenses lawfully obtained in marriage equality states.

On NBC’s Meet the Press Sunday, Ted Olson, who argued the Proposition 8 case against California’s ban on same-sex marriage in 2013, said he doesn’t believe the Supreme Court will issue such a split decision. And if the court follows the precedent of Loving v. Virginia, it won’t do a split. That 1967 decision said that state laws banning marriage between persons solely on the basis of racial classifications violated the 14th Amendment’s guarantees of equal protection and due process. The question now is whether state laws banning marriage between persons solely on the basis of sexual orientation –or sex– violate the 14th Amendment’s guarantees of equal protection and due process.

The Supreme Court will most likely take until the end of June to issue its decision. Until then, legal scholars and media will analyze the two-and-a-half-hours of argument April 28 to find clues for how each justice is leaning on both questions posed and to speculate how the majority will rule.

The fact that six justices agreed last year not to hear appeals from states seeking to keep their bans still has many court observers predicting a victory for marriage equality. (It takes the support of at least four of the nine justices to take an appeal. The court did not take an appeal until it accepted the appeal of plaintiffs challenging the same-sex marriage bans.) The fact that Kennedy has written three of the court’s decisions treating LGBT people with respect gives marriage equality supporters hope that he’ll forge the majority once again. But his historic support for state sovereignty and his recent bond with the conservative justices to strike down the Voting Rights Act, saying the states “retain broad autonomy,” give hope to those who support the state bans.

Meanwhile, the Washington Post reported last week that its poll with ABC found 61 percent support, 35 percent oppose, 4 percent had no opinion. Essentially that same percentage also opposed allowing individual states to ban same-sex marriage. NBC reported Sunday that its poll with the Wall Street Journal found 59 percent of Americans support marriage equality– up 18 points over 2009.

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