Time to say 'I do'
supreme court hears marriage arguments.
The first question from the U.S. Supreme Court bench April 28 was about the rights of states to regulate marriage, and though attorneys for same-sex couples tried numerous times to refocus attention to the damage that bans on same-sex marriage inflict on the rights of LGBT people, the focus stayed largely on states’ rights throughout the historic argument.
For two and a half hours—more than twice the time most cases get—an animated bench grilled attorneys for same-sex couples and the four states that seek to ban their marriages.
Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer asked most of the tough questions to challenge the governmental interest served by banning samesex couples from marriage. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito asked most of the tough questions to parties seeking to strike down those bans. Per his routine, Justice Clarence Thomas asked no questions, and true to his role as the court’s most unpredictable vote, Justice Anthony Kennedy asked tough questions of both sides.
The packed courtroom’s audience was equally lively, laughing frequently, applauding once, and at one point, a man at the back of the courtroom jumped up and began ranting loudly and incessantly about the Bible and “abominations” and saying that gays would “burn in hell.” Such outbursts have occurred in the court recently on other issues and the man’s disruption seemed well-timed, given that it did not interrupt any attorney’s allotted time before the bench.
But, as is also routine, the justices engaged in a great deal of interrupting attorneys throughout the proceeding.
Barely a minute into Gay & Lesbian Advocates & Defenders’ Mary Bonauto’s opening comments about how laws banning same-sex couples from marrying convey a “stain of unworthiness,” Justice Ruth Bader Ginsburg asked how the “federal government’s historic deference to states when it comes to matters of domestic relations” should influence the court’s decision on whether the state bans are unconstitutional.
In asking her question, Ginsburg referred to the court’s 2013 landmark decision in U.S. v. Windsor, in which the court emphasized states’ rights to regulate marriage as it struck down the key provision of the federal Defense of Marriage Act (DOMA), which had prohibited the federal government from recognizing marriages licensed to same-sex couples in some states.
“States do have primacy over domestic relations except that their laws must respect the constitutional rights of persons, and Windsor couldn’t have been clearer about that,” said Bonauto. “And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.”
Chief Justice John Roberts jumped on Bonauto’s choice of words, saying same-sex couples weren’t seeking the right to “join” marriage but to “redefine” it. The comment echoed his remarks in 2013 and hinted early on that Roberts is not a likely vote in favor of striking down state bans on same-sex marriage.
Kennedy jumped in next, first noting that it has been about 10 years since the Supreme Court struck down sodomy laws—a length of time comparable to when the court struck down state mandated racial segregation of schools and when it struck down state laws banning interracial marriages. It was an initial ray of hope that Kennedy was heading in the direction of striking down state laws. But then he compared 10 years to the “millennia” of years during which people thought of marriage as being between a man and a woman.
“This definition has been with us for millennia. And it—it’s very difficult for the Court to say, ‘Oh, well, we know better’.”
Justice Scalia soon entered the fray to say the question “is not whether there should be samesex marriage, but who should decide the point.”
“And you’re asking us to decide it for this society when no other society until 2001 ever had it,” Scalia told Bonauto.
Justice Alito took the discussion back even further than Ginsburg and Scalia, to ancient Greece, noting that same-sex relationships were accepted then but that there were no marriages between same-sex couples.
“So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?” asked Alito.
Fully expect Georgia to be brought into fold
What the Supreme Court decides in June will mean whether LGBT couples in Georgia will finally have the right to marry in their home state. Georgia is one of the last states in the country to still have a constitutional ban in place prohibiting same-sex marriage.
Anthony Kreis, an openly gay University of Georgia constitutional scholar, said he is loath to make predictions on how the Supreme Court will rule based on oral arguments.
But some points stuck out for him while listening to the audio of Tuesday’s arguments.
“On the whole, the arguments in favor of the couples were certainly stronger. There were far less weak moments for Mary Bonauto and the solicitor general [U.S. Solicitor General Donald Verrilli],” he said.
The states’ attorneys arguing to keep samesex marriage bans in place did not fare well, according to Kreis, especially with their arguments that marriage is for procreation. “Justice [Elena] Kagan tripped them up pretty good on that.”
Kreis believes it is highly unlikely the Supreme Court will uphold the Sixth Circuit ruling to keep in place same-sex marriage bans. And with, hopefully, a ruling that same-sex marriage is legal nationwide, Georgia will finally be “brought into the fold” with the 37 states that currently offer legal same-sex marriages.
“It appears Gov. Nathan Deal and [Attorney General] Sam Olens won’t even wait for a formal court order to abide by the Supreme Court’s ruling, and that is certainly not an insignificant development,” he said. “It bodes well for the rule of law.”
Kreis fully expects to be celebrating at 10th and Piedmont in June.
“I’m looking forward to June and being in Midtown again to celebrate. I can’t imagine what it will be like,” he said.
“The choice is not between the Court and the State, but instead whether the individual can decide who to marry, or whether the government will decide for him.” —Mary Bonauto of the Gay & Lesbian Advocates & Defenders in her closing arguments before the U.S. Supreme Court.