Gay Marriage Arguments Divide Supreme Court Justices

Supporters of same-sex marriage gathered in front of the Supreme Court on Tuesday as the justices prepared to hear arguments on the issue. Credit Stephen Crowley/The New York Times

Supporters of same-sex marriage gathered in front of the Supreme Court on Tuesday as the justices prepared to hear arguments on the issue. Credit Stephen Crowley/The New York Times

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.

Crowd Awaits Gay Marriage Arguments. Publish Date: April 28, 2015. Photo by Olivier Douliery/Getty Images.

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

Same-Sex Marriages Proceed in Alabama as State Judge’s Order Is Defied

Robert Povilat, left, and Milton Persinger celebrated the U.S. Supreme Court's decision not to stop same-sex marriages in Alabama. The couple were in line to be the first same-sex couple married in Mobile, Ala. Credit Dan Anderson/European Pressphoto Agency

Robert Povilat, left, and Milton Persinger celebrated the U.S. Supreme Court’s decision not to stop same-sex marriages in Alabama. The couple were in line to be the first same-sex couple married in Mobile, Ala. Credit Dan Anderson/European Pressphoto Agency

BIRMINGHAM, Ala. — Amid conflicting signals from federal courts and the chief justice of Alabama’s Supreme Court, some Alabama counties began granting marriage licenses to same-sex couples on Monday in a legal showdown with echoes of the battles over desegregation in the 1960s.

In major county seats like Birmingham, Montgomery and Huntsville, gay couples lined up outside courthouses as they opened, and emerged smiling, licenses in hand, after being wed by clerks or by the judges themselves.

At the Jefferson County Courthouse here, Judge Michael G. Graffeo of Circuit Court officiated, at times tearfully, at the civil wedding of Dinah McCaryer and Olanda Smith, the first to emerge from the crowd of same-sex couples who lined up Monday morning. “I now pronounce Olanda and Dinah are married spouses, entitled to all rights and privileges, as well as all responsibilities, afforded and placed upon them by the State of Alabama,” Judge Graffeo said.

But in the small town of Troy, all was quiet at the Pike County Courthouse, where Judge Wes Allen of Probate Court, like his counterparts in some other counties, had decided that rather than issue licenses to same-sex couples, he would not grant marriage licenses to anyone. “We don’t have any appointments, and we have a sign up saying that we aren’t issuing any licenses at this time,” he said.

Same-sex couples waited for the Jefferson County courthouse doors to open on Monday in Birmingham. Credit Hal Yeager/Associated Press

Same-sex couples waited for the Jefferson County courthouse doors to open on Monday in Birmingham. Credit Hal Yeager/Associated Press

On Sunday night, the state’s chief justice, Roy S. Moore, sent an order to county Probate Court judges, telling them not to issue the licenses, in defiance of a Federal District Court ruling that is being appealed by the state. But on Monday morning, the United States Supreme Court refused to stay the District Court order pending the outcome of that appeal.

Chief Justice Moore’s position on the balance of federal and state power has deep resonance in a region with a history of claiming states’ rights in opposition to the federal government, and in a state where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.

In his order to probate judges, Justice Moore cited the state constitutional amendment prohibiting gay marriage, approved by 81 percent of voters in 2006, and said that he, as chief administrator of the state courts, has authority over the probate courts. In interviews, he has argued that the state courts are not bound by the federal court’s order; in 2003, he refused to obey a federal court order to remove a Ten Commandments monument he had installed in the rotunda of the Alabama Judicial Building in Montgomery, though it was moved over his objections.

Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that in the same-sex marriage case, the federal judge, Callie V. Granade, an appointee of President George W. Bush, had instigated a grave breach of law. The result has been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government, playing out at Alabama’s courthouses.

As the weddings went ahead across much of the state, some Alabama officials lamented the Supreme Court decision, which denied a request by the Alabama attorney general to extend a hold on same-sex marriage. Judge Granade ruled in January that the Alabama ban was unconstitutional, but she put a hold on her order until Monday to give the state time to appeal.

”I regret the Supreme Court’s decision not to stay the Federal District Court’s ruling until the high court finally settles the issue this summer,” Attorney General Luther Strange, who had filed the motion, said in a statement. “In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court’s anticipated ruling on the legality of same-sex marriage.”

Here in Jefferson County, Judge Alan L. King of Probate Court said he had no hesitation, despite the Sunday night order on marriage licenses from Chief Justice Moore.

”At the end of the day, it’s still a very simple legal analysis: You’ve got a federal court order,” Judge King said in an interview as he watched the couples line up, near a white ribbon and red balloons.

He added: “This is a happy day for all of these couples, and if you can’t be happy for people, then I’m sorry. If someone can’t understand the joy and happiness of others, then I don’t know what else I can say.”

Monday’s marriages came despite a dramatic show of defiance toward the federal judiciary, announced in Chief Justice Moore’s order.

“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, Chief Justice Moore wrote in his order late Sunday.

Chief Justice Moore rose to national prominence in the early 2000s when he defied a federal judge’s order to remove a Ten Commandments monument from a Montgomery building and was subsequently ousted from his post leading the high court.He staged a political comeback, became chief justice again in 2013, and has in recent weeks said that Alabama’s probate judges are not bound by a federal trial court’s decisions. His argument has deep resonance in a place where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.

Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that Judge Granade, an appointee of President George W. Bush who joined the federal bench in 2002, had instigated a grave breach of law.

The result had been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government that was expected to play out at Alabama’s courthouses Monday.

The chief justice’s misgivings speak to widespread concerns here about federal overreach and same-sex marriage in Alabama, where about 81 percent of voters in 2006 supported a constitutional amendment banning gay nuptials. Few here doubt the force of Chief Justice Moore’s belief that Judge Granade’s orders hold only “persuasive authority,” and not binding power, on Alabama judges.

“My guess is, that is actually the way Roy Moore sincerely understands the federal-state relationship,” said Joseph Smith, a judicial politics expert at the University of Alabama. “He’s also an elected politician, and he knows who his constituency is.”

Despite Chief Justice Moore’s protests, some analysts see parallels between his arguments now and those Wallace advanced in his own time.

“It’s a very similar strain of ideology: the state’s rights, resisting the national tide, resisting liberal movements in policy,” Dr. Smith said.

Some legal scholars say that the chief justice may be correct in his interpretation of the immediate scope of the federal court’s rulings and how they apply to the probate judges. But his eagerness in pronouncing his views unnerved some in Alabama who feared that it might stir local judges to resist Judge Granade.

“I don’t want to see judges make the same mistakes that I think were made in this state 50 years ago, where you have state officials not abiding by federal orders,” said Judge Steven L. Reed of Montgomery County, who added, “The legacy always hangs over us until we show that we’re beyond it.”

For many here, it is unsurprising that Chief Justice Moore emerged as a strident voice in a social debate after the dispute about the Ten Commandments display, known as “Roy’s Rock,” forced him from power.

“Unfortunately, sometimes it makes for very good politics here to be seen as opposing federal intervention, whether it’s from a court or a federal agency,” said David G. Kennedy, who represents two women involved in a case that prompted Judge Granade’s decision. “The situation here is that this is not federal intervention. It’s not federal intervention at all. What it is, is a federal court declaring what same-sex couples’ rights are under the federal Constitution.”

Source:  NY Times, “Same-Sex Marriages Proceed in Alabama as State Judge’s Order Is Defied,” FEB. 9, 2015 (reporting from New York.)