WASHINGTON — The Supreme Court justices on Tuesday clashed during arguments on whether there is a constitutional right to same-sex marriage. The session is the last public step before a decision that will resolve one of the great open questions in modern constitutional law.
Until recently, the court has been cautious and halting in addressing same-sex marriage, signaling that it did not want to outpace public support and developments in the states. Now, though, a definitive decision will probably be handed down in about two months.
At the start of Tuesday’s arguments, Chief Justice John G. Roberts Jr. said that he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman. “If you succeed, that definition will not be operable,” the Chief Justice said. “You are not seeking to join the institution. You are seeking to change the institution.”
Justice Anthony M. Kennedy, who many consider the likely swing vote on the case, weighed in with skepticism as the advocates for gay marriage made their case. He said the definition of marriage “has been with us for millennia.”
“It’s very difficult for the court to say, ‘Oh, we know better,’ ” he said.
Justice Antonin Scalia echoed Justice Kennedy’s concerns about the weight of history and the relatively recentness of gay marriage. About halfway through Mary L. Bonauto’s argument for the recognition of a right to same-sex marriage, Justice Scalia asked whether she knew of “any society prior to the Netherlands in 2001 that permitted same sex marriages?” He repeated Justice Kennedy’s observation that the definition of marriage as between a man and a woman has been in effect “for millennia.”
Later, when the lawyer for the opponents of gay marriage began arguing, Justice Stephen G. Breyer forcefully questioned why states should be able to exclude gay people from marriage. “Marriage is open to vast numbers of people,” he said, adding that same-sex couples “have no possibility to participate in that fundamental liberty. And so we ask why.”
Several of the more liberal justices also pressed the opponents of gay marriage to say how, exactly, extending marriage to same-sex couples could harm heterosexual couples who want to marry.
Justice Ruth Bader Ginsburg was particularly blunt on that point. “You are not taking away anything from heterosexual couples” if the state allows gay couples to marry,” she said.
Justice Sonia Sotomayor seemed equally unpersuaded, asking how denying marriage to same-sex couples strengthens marriage for heterosexual couples.
John J. Bursch, the lawyer for the opponents of same-sex marriage, argued in response that if people no longer believe that “marriage and creating children have anything to do with each other,” there will be more children born out of wedlock, which he said is a problem for society.
In 2013, the justices ducked the question that they will now consider. At the time, however, just 12 states and the District of Columbia allowed gay and lesbian couples to marry. Similarly, the court in October refused to hear appeals from rulings allowing same-sex marriage in five states.
That decision immediately expanded the number of states with same-sex marriage to 24, up from 19. The number has since grown to at least 36, and more than 70 percent of the nation lives in states that allow same-sex marriage.
The justices might have been content to remain on the sidelines. But a decision in November from a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, forced their hand. The Sixth Circuit upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee, saying that voters and legislators, not judges, should decide the issue.
Source: The New York Times, “Gay Marriage Arguments Divide Supreme Court Justices,” APRIL 28, 2015