The U.S. Supreme Court on Tuesday appeared sharply divided over whether the Constitution requires all states to license same-sex marriages, with lengthy arguments often focusing on the effect of state policies on children.
Justice Anthony M. Kennedy, the member of the court considered by many observers to be the key vote in the case, had concerns for both sides. He noted that opposite-sex marriage has been an institution of societies for thousands of years, while same-sex marriage has been permitted in some states for only about a dozen years.
“This definition [of opposite-sex marriage] has been with us for millennia,” he said to a lawyer representing gay couples seeking to marry in Kentucky and Michigan. “It’s very difficult for the court to say, ‘Oh well, we know better.”
But later, he questioned how same-sex marriage harms “traditional marriage,” as the states which impose such bans argue.
“Same-sex couples say, of course, ‘We understand the nobility and the sacredness of the marriage,’” said Kennedy, who wrote the majority opinion two years ago requiring the federal government to recognize same-sex marriages from the states that permit them. “‘We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.’”
The comments came during two-and-a-half hours of arguments in Obergefell v. Hodges (No. 14-556), a consolidation of cases from four states about licensing and recognition of same-sex marriages. The Michigan case involves the licensing issue only, while the Kentucky case involves licensing and recognition. The cases from Ohio and Tennessee involve recognition only.
Much of the argument focused on the role of children in marriage—from the traditional marriage policies of the states to their place in same-sex families.
Mary L. Bonauto, a Boston lawyer representing same-sex families on the licensing question, noted that social science evidence about the effects of such marriages on children has been weighed, including in a trial in the Michigan case. (As I discussed in a preview of the arguments here.)
“These issues have been aired repeatedly, and there is, as you all have heard, a social science consensus that there’s nothing about the sex or sexual orientation of the parent, that is going to affect child outcomes,” she said.
U.S. Solicitor General Donald B. Verrilli Jr., arguing for President Barack Obama’s administration on the side of same-sex couples, said that “in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, ... it is simply untenable to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals.”
John J. Bursch, a special assistant attorney general of Michigan defending all four states’ same-sex marriage bans, told the justices there was no animus on the part of the states or their voters.
The states don’t “intend to take away dignity from anyone,” he said. “We respect all parents, and we hope that they love their children. But this court taking this important issue away from the people will have dramatic impacts on the democratic process.”
Chief Justice John G. Roberts Jr., who is considered by some analysts as having an outside chance of siding with same-sex marriage proponents, had sharp questions for Bonauto.
“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,” the chief justice said. “Obviously, if you succeed, that core definition will no longer be operable.”
Roberts did appear more sympathetic, however, to the arguments that even if the court upheld state laws against same-sex marriage, a state with such a law would have to recognize a same-sex marriage performed legally elsewhere.
A decision in the case is expected by late June.
Photo: An equality flag waves during a demonstration in front of the U.S. Supreme Court in Washington on Tuesday, where the justices heard arguments over whether the U.S. Constitution requires states to license and recognize same-sex marriage. Photo by Jose Luis Magana/AP.
A version of this news article first appeared in The School Law Blog.