WASHINGTON (Christian Examiner) – The Supreme Court today heard oral arguments on two questions related to gay marriage, both of which – if the high court rules in favor of gay rights advocates in June – will upend the remaining laws protecting traditional marriage in the United States.
At issue in Obergefell v. Hodges is whether or not the Fourteenth Amendment requires a state to license a marriage between two people of the same sex, as well as if the government can require a state that has no same-sex marriage provision to recognize a legally-licensed, same-sex marriage performed in another state.
Currently, same-sex marriage is legal in 37 states and the District of Columbia, largely because of judicial activism. In 39, citizens or their elected representatives worked democratically to define marriage as between one man and one woman, but judges struck down 26 of these laws, redefining the institution to include same-sex couples. Twenty-two of these governments are fighting back to protect traditional marriage.
On the other side, eight state legislatures made same-sex marriages legal, and voters in three states, Maine, Maryland and Washington, approved ballot measures doing the same.
Chief Justice John Roberts challenged the idea that the court was compelled to accept gay marriage as a constitutional right based on the two questions under consideration. Roberts said he was unaware of any definition of marriage that was inclusive of any party other than a man and a woman until recently. He also hinted at the motives of same-sex marriage advocates.
"You are not seeking to join the institution. You are seeking to change the institution," Roberts said. He added that changing the definition of marriage would leave the definition of the institution of marriage inoperable.
Mary Bonauto, attorney for the plaintiffs in the case, rejected the idea. She told the justices that committed relationships between gay couples, "just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society."
Bonauto also said denying gay couples access to the institution of marriage would be detrimental to the "class," because "the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity."
The reference to the dignity of the gay community was a clear reminder from Bonauto that the court had ruled 5-4 in U.S. v. Windsor in 2013 that parts of the federal Defense of Marriage Act (DOMA), which prohibited financial benefits to same-sex couples, was unconstitutional because it was an affront to dignity.
In the Windsor ruling, Justice Anthony Kennedy wrote for the majority that "no legitimate purposes overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."
Initially, Kennedy seemed to side with Chief Justice John Roberts, claiming that the definition of marriage had stood for "millennia." Kennedy said that there may not have been enough time to debate the issue.
"This definition has been with us for millennia, and it is very difficult for the court to say, 'Oh well, we know better,'" Kennedy said.
Later, however, Kennedy returned to his questions about dignity, leading many court observers to believe Kennedy will likely be the deciding vote in favor of the full legalization of gay marriage.
Justice Ruth Bader Ginsburg also referenced the Windsor ruling when she asked about the federal government's deference to states on issues of domestic relations. Bonauto said states did have primacy in such cases, but she said state laws must comport with constitutionally guaranteed rights providing access for all classes to the institution of marriage. No member of the court challenged the definition of homosexuality as a class.
Justice Antonin Scalia asked Bonauto if she could explain why same-sex marriage was not accepted in other societies throughout history until it was accepted in the Netherlands in 2001. She said there were now 17 or 18 countries in Europe and South America which allow same-sex marriage.
Justice Samuel Alito then responded that even if homosexuality was accepted, as it was in ancient Greece, societies might still limit marriage to heterosexual couples without discrimination against homosexuals.
"How do you account for the fact that, as far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Now, can we infer from that that those nations and those cultures all thought there was some rational, practical purpose for defining marriage in a way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?" Alito asked.
Bonauto told the court she could not speak to what ancient philosophers such as Plato thought, but none of those societies had the same constitutional protections offered by the United States. "Times can blind," Bonauto said.
Justices asked difficult questions of both sides during the two-and-a-half hours of oral argument. Even Justice Stephen Breyer, who normally sides with the liberal half of the court, said the current case proposes that the court reconsider what has been "the law everywhere for thousands of years." Breyer said the plaintiffs want "nine people outside of the ballot box" to require states to change their laws.
But Breyer seemed sympathetic to the plaintiffs' case, as did Justices Sonya Sotomayor and Elena Kagan. Kagan said opponents of same-sex marriage wanted to force the government to say who can and cannot exercise constitutional rights.
"I don't think we've really ever done that," Kagan said. "Where we've seen a constitutional right, we have not defined it by 'these people can exercise it, but these people can't,' especially where claims are both rights-based and equality-based."
Justice Clarence Thomas remained silent during the arguments for both questions before the court. Justice Kennedy asked nothing of the attorneys when the court was weighing the second question on the Fourteenth Amendment – whether a same-sex marriage performed in one state would have to be recognized by a state with no same-sex marriage provision.
Critics have charged that two of the justices present for oral arguments today should not have participated in the session.
The National Organization for Marriage and the American Family Association both called on Justice Ginsburg and Justice Kagan to recuse themselves from the case. Before oral arguments on the case began, Justice Ginsburg said she had already made up her mind about the issue, a report from Yahoo! Politics said April 27. Ginsburg said she was in favor of legalizing same-sex marriage nationwide because of America's changing social views.
Justice Kagan officiated a same-sex wedding in September 2014.