Opening oral arguments were heard on Tuesday by the U.S. Supreme Court for two questions allowing the granting of same-sex marriage, or their recognition by other states, in an atmosphere, for many, both supporters and opponents, of hope, fear, anxiety and anticipations, either to be met or exceeded. But, the nine justices seemed, as many observers had predicted, to be as inquisitive and probing, as their role demands, but also reflected a complex variety of opinions that many in the country still have, despite a strong supportive majority, according to recent polls.
There are four cases, collectively known as Obergefell v. Hodges, and there are two questions for the Court: Does the 14th amendment of the U.S. Constitution require states to issue a marriage license between two people of the same sex? And, secondly does it require a state to recognize a marriage between two people of the same sex when their marriage was legally performed out-of-state?
The Initial arguments focused on a wider context. Justice Anthony Kennedy,for example, long thought to be the swing vote on liberal issues, after the retirement of Sandra Day O’Connor, noted the historic change of the definition of marriage between a man and a woman, that has been known for “millennia.” But, he also expressed that the institution of marriage conveyed a dignity on those who obtain it, and that he did not want to deny gay couples from also having it.
There was also concern for groups of people marrying expressed by Justice Samuel A. Alito, and would clergy opposed to same-sex marriage be forced to perform wedding ceremonies, asked by Justice Antonin Scalia.
Even before Tuesday, Justices Ruth Bader Ginsburg and Sonia Sotomayor gave public approval to marriage equality, and even officiated at some of these marriages, and true to form, they said that a change would not effect heterosxual marriage.
Chief Justice John Roberts noted that his research seemed to always show a definition of marriage that was between a man and a woman, and strongly hinting to lawyers for the plaintiffs that a switch would be operational, because it would “change the institution.”
Scalia also questioned lead attorney for the plaintiffs, Mary Bonauto, if there were any societies, “prior to 2001 that permitted same-sex marriages,” and Justice Breyer, noting with significant, force, asked those advocating state bans why same-sex couples could not participate in the same “fundamental liberty” that different-sex couples have.
Seasoned Court observers have guessed that if Kennedy remains the swing vote, in support of marriage equality, the result could be a 5-4 victory. But, the two basic questions, in focus, belie a simple vote, because the most significant outcome would be that if the 14th is upheld as a standard, then existing laws for protection, (in employment, public accommodations, and adoption, for example ), the Court would then be forced to dictate a level of judicial scrutiny applied to any laws that are discriminatory towards individuals because of their sexiual orienation.
Another outcome would be a 6-3 split with Roberts in the lead, but a narrow ruling, with separate decisions on each question, would require the consent of the other five justices, which lies outside of his purview as chief justice.
Yet even another possibility is that the first question might be invalidated, but the second sustained, an option that seems Solomon-like, but that would mute any criticism that the Court is anti-gay.
Roberts also noted that the second question will only be allowed, if there is a loss on the first. But, the second attorney for the plaintiffs, Douglas Hallward-Driemeier said, according to the National Law Journal that “the court that its ruling in United States v. Windsor held that once a couple is married, there is a “constitutionally protected liberty interest” in that marriage. “There is not only a fundamental right to be married,” he said, “but a right to remain married.”
One of the more pressing arguments against gay marriage is that it would somehow damage, or even invalidate, the marriages of non-gay people, a charge that did not hold water with Ginzburg, or Sotomayor, who asked, in part, how the denial would work, and Ginzburg even commented that “You are not taking anything away from heterosexual couples,” reported The New York Times.
Also for the opposition was John J. Bursch who remarked that marriage and procreation co-existed and that recognition of one without the other was impossible, and that more children would be born out of wedlock. But, Justice Elena Kagan demurred and said, according to National Public Radio, that “Some people have difficulty with that argument, finding it “hard to see how permitting samesex marriage discourages people from being bonded with their biological children.”
After the two-and-a-half-hours of Tuesday’s deliberations it will take the Court to the end of June to make the final decision. In the meantime, America gets to ponder what has been a sea change in belief, against the tide of long-held moral antipathy towards gay people, replete with what The Economist said, late last year, was the deterioration of “the whole panoply of laws and customs that have historically discriminated against gay people,” and an unforeseen change, from even nearly a decade ago, as moral disapproval has melted away bringing the issue to that last legal arbiter, the United States Supreme Court.