A decades-long battle over wedlock for gays and lesbians reached the U.S. Supreme Court, which heard arguments Tuesday on whether same-sex couples have a constitutional right to civil marriage, and whether states that ban gay unions must recognize same-sex marriages licensed by other states.
While throngs of gay rights advocates and opponents demonstrated outside, justices gave diverging and, at times, conflicting signals as to how they might rule.
During more than two hours of proceedings, justices and presenting attorneys wrestled with three major questions: Why should the high court decide the issue on a national basis rather than leaving it up to individual states? Why act now to alter or expand marriage — an institution that has existed for millennia? If marriage is a fundamental right, how can an entire class of people be excluded from it given constitutional guarantees of equal protection under the law?
First to present arguments was Mary Bonauto, representing same-sex couples in four states where gay unions are not recognized. She began by saying that denying marriage to gays and lesbians condemns them to second-class status in America. She was interrupted almost immediately with questions.
Justice Anthony Kennedy, whose vote could decide the case in the ideologically polarized court, questioned the timing of the case. He noted that barely a decade has passed since anti-sodomy laws were ruled unconstitutional. He compared that short time frame to the age-old existence of marriage as an institution. He asked why the court should mandate a sudden change on a national basis rather than allowing states to debate and evaluate the issue and decide for themselves.
"It's very difficult for the court to say, 'We know better,' " Kennedy said.
Similarly, Chief Justice John Roberts pressed Bonauto about the rights of states to set parameters for marriage.
Justice Samuel Alito noted no society or culture had recognized same-sex marriage until very recently, adding that ancient Greece had gay people and had marriage, but not gay marriage.
Responding, Bonauto repeatedly cited the 14th Amendment to the U.S. Constitution guaranteeing equal protection under the law. She argued that the amendment is timeless and covers same-sex couples seeking to wed, even if their expressed desire to do so is a recent development. She also said it has taken society a long time to recognize the common humanity of gays and lesbians, suggesting that their desire to wed might have been expressed sooner but for the prevalence of anti-gay attitudes spanning centuries.
She also cited previous court decisions, striking down a ban on interracial marriage and affirming the right of everyone, even imprisoned criminals, to wed.
Justice Antonin Scalia asked about possible consequences for religious freedom if same-sex marriage is decided nationally as a matter of constitutional law. Bonauto responded that ample constitutional guarantees exist for religious liberty.
None of her arguments seemed to convince the conservative justices — Roberts, Alito, Scalia and Justice Clarence Thomas — some of whom expressed impatience or frustration with her responses.
Next up was the federal government's representative before the court, Solicitor General Donald Verrilli — but not before proceedings were interrupted by a protester, who repeatedly shouted that homosexuality is an “abomination to God.” The protester was removed from the courtroom but still could be heard shouting from a hallway for several minutes thereafter.
Roberts drew chuckles when he shrugged and said, “Freedom of expression.”
Burdens on gay couples
Verrilli argued that the court must not wait to decide the issue of same-sex marriage because delay is imposing real costs and burdens on gay couples. He said gays and lesbians are being recognized as full, contributing members of society, and discrimination against them cannot be justified.
Again, conservative justices pounced. Alito asked if there is a difference between same-sex marriage and that between siblings, and about the historical role of marriage in child-rearing.
Verrilli responded that laws in some states allow 100 percent of heterosexuals to marry, but ban 100 percent of gay couples from the institution, even though some of them are raising children. He said hundreds of thousands of children in same-sex households are being denied the benefits and stability of a married home.
Next, Michigan Assistant Attorney General John Bursch presented arguments on behalf of four states that ban same-sex marriage. He argued that marriage serves a purpose in society, one that the government has an interest in protecting: the rearing of children by their biological parents.
Bursch argued that changing society’s concept of marriage is dangerous and could undermine heterosexuals’ adherence to the institution as a child-rearing mechanism.
Those assertions caused the court’s liberal justices to speak up.
Justice Stephen Breyer asked why just one group should be excluded from the fundamental right to marry, when not every couple, gay or heterosexual, wants children.
Justice Elena Kagan asked how same-sex marriage could possibly harm anyone else and, conversely, how excluding gays and lesbians benefits anyone. She also asked that if child-rearing is the purpose of marriage, why not deny licenses to heterosexual couples who do not want to have kids?
Evolving views of marriage
Justice Ruth Bader Ginsberg piped up with a similar question: Why not exclude 70-year-olds who can no longer have children? She also questioned any static assessment of traditional marriage, noting that marriage is not viewed the same way today as it was centuries or even decades ago.
Bursch responded that gay and lesbian couples are seeking societal affirmation and dignity in petitioning for marriage, something the government has no interest in providing. He noted that out-of-wedlock births have skyrocketed in America in recent decades and could become more prevalent if the public’s understanding of marriage is altered.
Just as Bonauto did not appear to sway conservative justices, Bursch’s arguments did not seem to find receptive ears among the liberals. Kennedy also challenged Bursch, saying he seemed to be operating under the assumption that gays and lesbians have no noble motives in wanting to marry.
Later, the court heard arguments on whether all states must recognize same-sex marriages from other states. But it was the first segment that seemed to provoke the most passion, with justices and attorneys wrestling over the precise meaning and value of marriage and its application in a country that values equality under the law, individual liberty and states’ rights.
If Kennedy is the swing vote between four liberal and four conservative justices, he said nothing that definitively predicted which side he will come down on. He has a long history of defending the prerogatives of individual states, but has also spoken with sympathy about the disadvantages gay marriage bans place on children being raised in same-sex households.