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Apr. 28th, 2015
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telemann.livejournal.com
Gay Marriage Arguments Divide Supreme Court Justices
WASHINGTON — The Supreme Court on Tuesday seemed deeply divided about one of the great civil rights issues of the age: whether the Constitution guarantees same-sex couples the right to marry.
The justices appeared to clash over not only what is the right answer but also over how to reach it. The questioning illuminated their conflicting views on history, tradition, biology, constitutional interpretation, the democratic process and the role of the courts in prodding social change.
Justice Anthony M. Kennedy said he was concerned about changing a conception of marriage that has persisted for millennia. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John C. Roberts Jr. worried about shutting down a fast-moving societal debate.
In the initial questioning, which lasted about 90 minutes, Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry , while Justice Antonin Scalia said a ruling for same-sex marriage might require some members of the clergy to perform the ceremonies, even if they violate their religious teaching.
Justice Stephen G. Breyer described marriage as a fundamental liberty. And Justices Ruth Bader Ginsburg and Elena Kagan said that allowing same-sex marriage would do no harm to the marriages of opposite-sex couples.
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 Roberts 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 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 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.”
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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 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.
The Sixth Circuit’s decision created a split among the federal appeals courts, a criterion that the Supreme Court often looks to in deciding whether to hear a case. That factor had been missing in October.
The couples challenging the bans promptly appealed to the Supreme Court. In January, the justices agreed to step in.
The last time the court agreed to hear a constitutional challenge to a same-sex marriage ban was in 2012. The case, Hollingsworth v. Perry, concerned California’s Proposition 8, a measure that made same-sex marriage illegal in the state. At the time, nine states and the District of Columbia allowed same-sex couples to marry.
When the court ruled in June 2013, it did not answer the central question in the case. A majority of the justices said the case was not properly before them, and none of them expressed a view about whether the Constitution requires states to allow same-sex marriage.
More here at the New York Times.
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