Marriage Equality Arguments First Reaction: Ginsburg Strikes, Kennedy Wavers

As Justice Anthony Kennedy goes, so goes the Supreme Court.

Photo by David Paul Morris/Getty Images

Welcome to Outward’s live coverage of the Supreme Court oral arguments in Obergefell v. Hodges, the case that will likely decide the legality of same-sex marriage across the United States. Mark Joseph Stern will update this page with reports from the court throughout the day. 

On Tuesday the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that could lead to nationwide marriage equality. The arguments arrive nearly two years after the court struck down a federal same-sex marriage ban, holding that it unconstitutionally “degrade[d] and demean[ed]” gay couples. This time around, gay rights advocates are hoping the court will take a step further and hold that all state-level same-sex marriage bans violate the 14th Amendment of the United States Constitution. 

My colleague Dahlia Lithwick sat in on arguments today and will be reporting in-depth this afternoon. Before she weighs in, I’ll provide a few quick reactions to what we’ve heard so far.

1. Kennedy’s vote is no sure thing. 

Justice Anthony Kennedy, the author of the court’s three gay rights opinions and a swing vote on the issue, often asks tough questions of both sides—even the one he agrees with. Today was no different. Kennedy told Mary Bonauto, the attorney arguing for marriage equality, that he has “a word on his mind, and that word is ‘millennia.’ ” In other words, the definition of marriage as one man, one woman has existed for at least several milennia; why should the court change it so quickly? Yet Kennedy also pointed out that the time between Lawrence v. Texas (which legalized gay sex) and today is roughly equal to the time between Brown v. Board of Education (which struck down school segregation) and Loving v. Virginia (which legalized interracial marriage). And he declared that to his mind, the main purpose of marriage was to grant “dignity” to couples, a dignity many states now wish to deny fgay couples, even those raising children.

These questions indicate that Kennedy may be sincerely struggling with a vital question in this litigation: Why should the Supreme Court hold same-sex marriage bans unconstitutional when legal same-sex marriage is so novel? On one hand, Kennedy feels a definition that has persisted for “millennia” should not be changed lightly. On the other hand, he realizes that opponents of integration and interracial marriage made similar arguments, and that same-sex marriage bans inflict indignity and hardship on gay couples.

When John Bursch approached the bench to defend Michigan’s same-sex marriage ban, Kennedy seemed to forget about his previous trepidation and delivers a forceful argument for marriage equality. Bursch claimed, rather incomprehensibly, that if same-sex marriage is legalized in Michigan, opposite-sex couples will be less committed: They will think marriage is only about “their emotional commitment to each other,” not about keeping couples “bound” to their children “forever.” Kennedy sounded irritated, responding:

That assumes that same-sex couples could not have a more noble purpose. [They may say] of course we understand the nobility and the sacredness of marriage. 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.   

2. Ginsburg is on fire.

Justice Ruth Bader Ginsburg, a likely vote in favor of marriage equality, fiercely pushed back against the notion that the definition of marriage has remained unchanged for millennia. Marriage as an egalitarian institution, Ginsburg noted, is a very recent innovation, even in America. Before the 20th century, men were the dominant partners in marriage, socially and legally; in fact, married women were forbidden from owning property when the 14th Amendment was ratified. Ginsburg seemed to suggest that same-sex marriage would fit neatly into this new idea of egalitarian marriage, and that endorsing a millennia-old definition of marriage would be supporting an implicitly sexist institution.

Ginsburg also pressed same-sex marriage opponents to explain how legalizing marriage equality could possibly hurt opposite-sex couples. “You are not taking away anything from heterosexual couples,” she said, when the state permits same-sex marriage. Justice Sonia Sotomayor echoed this point, demanding to know how barring gay couples from marriage could possibly strengthen marriage for opposite-sex couples. “How,” she asked, “does withholding marriage from one group—same-sex couples—increase the value [of marriage] to the other group?” And Justice Stephen Breyer asked why states had any interest in forbidding same-sex marriage, repeatedly noting that marriage is a “fundamental liberty” which “the state offers to almost everyone”—except gay couples.

3. Roberts doesn’t look like a swing vote.

Many court watchers, myself included, speculated that Chief Justice John Roberts might swing in favor of marriage equality this time around, in large part to avoid a seemingly partisan 5–4 split. But Roberts didn’t appear to be playing the role of swing vote on Tuesday morning. When Bonauto said gay couples hoped to “join” the institution of marriage, Roberts suggested that they were instead looking to “redefine” it, since marriage was defined as one man, one woman throughout history. Roberts also told Bonauto that if the court strikes down same-sex marriage bans, “there will be no more debate,” which “can close minds.” He, like Kennedy, seems concerned that ruling in favor of marriage equality would go too far, too fast. But unlike Kennedy, Roberts has never gone on the record defending the dignity of same-sex couples.

4. Alito asks the morning’s most offensive question.

When Solicitor General Donald Verrilli approached the bench, Justice Samuel Alito (who opposes a constitutional right to same-sex marriage) asked him a startlingly offensive and exasperating question. “Let’s think about two groups of two people,” Alito said—a same-sex couple who have lived together for 25 years, and two opposite-sex siblings who have lived together for 25 years. Both groups “share household expenses and chores in the same way.” Then Alito dropped the morning’s most galling line.

“They care for each other in the same way,” he said. “Is there any reason why the law should treat the two groups differently?”

To his great credit, Verrilli did not trip up on the fact that Alito just openly compared same-sex love with sibling incest. Instead, he responded that “marriage is something more fundamental” than two siblings living together—it’s about dignity and devotion, not “household expenses and chores.”

Alito’s question to Verrilli built upon an equally insulting question earlier in the morning. In an exchange with Bonauto, Alito strongly implied that legal same-sex marriage would inevitably lead to legal polygamy. The logic that marriage can be limited “to two people who want to have sexual relations” doesn’t hold, he insisted; if gays are permitted to marry, “larger groups,” like “two men and two women,” must also be allowed to wed. Alito’s puzzlingly nasty statements lingered for the remainder of the morning, vividly illustrating how ignorant the arguments against marriage equality can often be. 

5. Scalia and Roberts read the news. 

In a lively exchange, Justice Antonin Scalia—the court’s fiercest opponent of constitutional gay rights—asked whether, if the court legalizes marriage equality, ministers may be forced to perform a civil same-sex marriage. (Two ministers in Idaho concocted a phony lawsuit to this effect in October.) Bonauto responded that the answer was obviously no. Scalia demanded that she explain how that could be true if same-sex marriage is a constitutional right. Justice Elena Kagan jumped in to note that rabbis can decline to marry Jews with gentiles, and Breyer reminded Scalia of the existence of the First Amendment. Eventually, Scalia appeared to concede that Bonauto was correct.

A short time later, Roberts asked Verrilli a similar question, pondering whether “a religious school that has married housing” would be required “to afford such housing to same-sex couples” if the court ruled in favor of marriage equality. Verrilli gently reminded Roberts that “these issues are going to arise no matter which way you decide this case,” and that they arose before gay marriage even existed, when same-sex couples held “commitment ceremonies” for themselves. Roberts did not seem placated.

Read more of Slate’s coverage of gay marriage at the Supreme Court.