All eyes on Justice Kennedy again

WASHINGTON—Artificial insemination, adoption, no-fault divorce, polygamy, and gay culture in ancient Greece all came up in the heated arguments over same-sex marriage at the Supreme Court today.

The packed court considered two questions over two-and-a-half hours: Does the 14th Amendment require all states to issue same-sex marriage licenses? And if not, must states recognize same-sex marriages performed in other states? But in reality the high court was asking one simple question: What is the purpose of marriage? Is it based on love, or is it based on a potential future family?

Leading up to the arguments, the court signaled it would likely legalize same-sex marriage nationwide through this case, as it repeatedly declined appeals of circuit court rulings that struck down state marriage laws. But today the justices appeared divided, with the cagey Justice Anthony Kennedy holding the key vote.

Kennedy and a majority of the other justices expressed reservations about a court changing an institution that had existed for “millennia.” Then again, Kennedy also talked about the “noble purpose” of same-sex couples seeking marriage, and their “dignity” that has gone unfulfilled. Kennedy used this kind of language in his decision in United States v. Windsor, the 2013 ruling that struck key parts of the federal Defense of Marriage Act, which led to rapid lower court rulings against state marriage laws.

The central legal question here is whether lower courts misread the Windsor decision. Every circuit court except the 6th U.S. Circuit Court of Appeals read it as an equal protection ruling—that marriage laws discriminate against same-sex couples. The 6th Circuit read Windsor as a states’ rights ruling and said elected representatives, not the courts, should decide such a momentous social change. The Supreme Court took up the 6th Circuit’s ruling, which covered marriage laws in Ohio, Kentucky, Tennessee, and Michigan.

But legal reasoning and discussion of U.S. court precedents were minimal in today’s arguments. The justices and lawyers instead discussed bigger questions of sex, marriage, and children: How would changing the definition of marriage affect children? How could the government limit the definition of marriage if it no longer consisted of only the union of one man and one woman?

Right off the bat, when the attorney for the gay couples, Mary Bonauto, began her discourse about homosexuals being excluded from the marriage institution as a class, Chief Justice John Roberts jumped in. “You’re not seeking to join the institution,” he said. “You’re seeking to change what the institution is.”

Kennedy concurred: “This definition has been with us for millennia so it’s very difficult for the court to say, ‘Well, we know better.’”

Justice Antonin Scalia then asked, “The issue is not whether there should be same-sex marriage but who should decide it? You’re asking us to decide it when no other society had it prior to 2001.”

Bonauto responded that marriage as an institution had changed over time. “All of these gender differences between the rights of the pair have disappeared,” she said, creating an institution in which “same-sex couples fit quite well.”

Justice Stephen Breyer also joined this line of questioning, although he often asks hard questions of both sides. “I would like to hear a precise answer to the question asked several times,” he said to Bonauto. “Suddenly you want nine people outside the ballot box to require states to do what they don’t want to do.”

Roberts told Bonauto that should the court impose gay marriage on the country it would end debate on the issue and “close minds.”

“People will feel very different on this if you vote on it instead of having it imposed on you,” he said.

Scalia brought up religious freedom, and said a court-created constitutional right to same-sex marriage would threaten religious people and institutions who object to gay marriage on moral grounds.

“Were the states to adopt it by law, they could make exceptions,” he said. “But once it’s made a matter of constitutional protection …”

Later Roberts revisited that topic, asking Solicitor General Donald Verrilli Jr., who had 15 minutes to argue in favor of the gay couples, about whether a religious school with married housing would have to house same-sex couples. Alito asked about a religious college that would not be entitled to tax-exempt status.

“It’s certainly going to be an issue,” Verrilli said, but he added that such issues would arise regardless of the outcome of this case.

Douglas Laycock, a religious freedom professor at the University of Virginia School of Law, penned a brief on this case, arguing in favor of nationwide same-sex marriage but also urging the court to protect religious liberty.

“If this court holds that same-sex marriage is constitutionally required, it must take responsibility for the resulting issues of religious liberty, because a constitutional decision will largely displace legislative efforts to address the issue,” he wrote. “States that have enacted same-sex civil marriage by legislation have generally included provisions to protect religious liberty. But where marriage equality has arrived by judicial decision, religious liberty has not been protected.”

Lawyers on both sides had intractable problems. The lawyers arguing for a nationwide right to gay marriage could not give a sufficient definition of what marriage is, if not a union between a man and woman. At one point Alito asked Verrilli what he thought the “essential elements” of marriage were. Verrilli searched, mentioning “mutual support and responsibility” and an “enduring bond.”

Alito asked how unmarried siblings who had lived together for many years should be treated any differently under that definition. Throughout the argument, Alito asked several times about polygamy, and how states could refuse to give marriage licenses to polygamous couples under this reasoning. The lawyers for the gay couples had no satisfactory answer.

The lawyers arguing for the states’ rights to make their own marriage laws did not have good answers for how allowing same-sex marriages would hurt heterosexual marriages, already in disarray, based on romantic love, and disconnected from procreation. The lawyer arguing for the states on the first question, John Bursch, said the court couldn’t know how changing the institution of marriage would affect marriages and children years from now.

“When you change the definition of marriage … that has consequences,” he said. Bursch mentioned the passage of no-fault divorce: “It had consequences over the long term that we didn’t expect.”

He argued that the state has an interest in regulating relationships that could produce children.

“The state has no interest in love and emotion,” said Bursch. “Justice Kagan and I have a close friendship but the state has no interest in regulating that.”

The discussion on the question of whether states have to recognize same-sex marriages from other states was more sedate. Justices asked fewer questions, and Kennedy was particularly quiet. That in itself may indicate that court may not rule in favor of states; the court will only have to consider that question if it rules in favor of the states on the question of whether the 14th Amendment requires all states to issue same-sex marriage licenses. But no one will know which way the justices are leaning—and specifically Kennedy—until the court announces its ruling, likely at the end of June.