WASHINGTON — Pivotal Supreme Court Justice Anthony Kennedy asked skeptical questions of both sides Tuesday as the U.S. high court heard historic arguments over the right of gay and lesbian couples to marry.
Kennedy, whose vote on the nine-member panel could decide the issue, said marriage has been understood as one man and one woman for “millennia-plus time.” He said same-sex marriage has been debated in earnest for only about 10 years, and he wondered aloud whether scholars and the public need more time.
“It’s very difficult for the court to say ‘We know better,'” Kennedy told Mary Bonauto, a lawyer representing same-sex couples.
Yet Kennedy also pressed attorney John Bursch, representing the states that ban same-sex marriage, to explain how granting gay couples a right to marry would harm traditional marriages. Bursch argued that removing child-rearing as the central rationale for marriage would weaken parents’ commitment to staying married for their children’s sake if their own ties were frayed.
The arguments offered the first public indication of where the justices stand in the dispute over whether states can continue defining marriage as the union of a man and a woman, or whether the U.S. Constitution gives gay and lesbian couples the right to marry.
It was barely a decade ago that the first state allowed gay and lesbian couples to marry. That was Massachusetts, in 2004. As recently as last October, barely a third of the states permitted it. Now, same-sex couples can marry in 36 states and Washington, D.C., a sign of the dramatic change in public opinion.
Justice Samuel Alito suggested that basing marriage on lasting bonds and emotional commitment — instead of providing stable homes for children — might open the right to marry to siblings who live together or close friends who are not romantically or sexually involved.
However, Justices Stephen Breyer and Sonia Sotomayor both said marriage was a fundamental right and a state would need a truly compelling reason to deny it to a class of people.
Chief Justice John Roberts said gay couples seeking to marry are not seeking to join the institution of marriage.
“You’re seeking to change what the institution is,” he said.
But Roberts also questioned the states’ argument. If a man can marry a woman, but a woman can’t marry a woman, “Why isn’t that … sexual discrimination?” he asked.
The session was interrupted after about 30 minutes by a protester yelling loudly. He was removed by security.
Justice Antonin Scalia said the issue is not whether there should be same-sex marriage “but who should decide the point.” He expressed concern about the court imposing a requirement on the states that “is unpalatable to many for religious reasons.”
Breyer asked whether the nation needs more time to “wait and see” whether gay marriage is harmful to society. Bonauto responded that wait-and-see has never been considered a justification for discrimination under the Constitution.
The court was hearing extended arguments, scheduled to last 2½ hours, which also are exploring whether states that do not permit same-sex marriage must nonetheless recognize such unions from elsewhere. Same-sex couples now can marry in 36 states and the District of Columbia.
People on both sides of the issue gathered outside the marble courthouse.
“Homo sex is a sin,” read one demonstrator’s sign. A man shouted into a microphone that gays violate the laws of God. A group of same-sex advocates tried to drown him out by singing “The Star-Spangled Banner.”
Cheers went up in the crowd when the court’s doors opened, allowing a lucky few who lined up days ago to get inside.
The cases before the court come from Kentucky, Michigan, Ohio and Tennessee, four of the 14 remaining states that allow only heterosexual marriage. Those four states had marriage bans upheld by the federal appeals court in Cincinnati in November. That is the only federal appeals court that has ruled in favor of the states since the Supreme Court in 2013 struck down part of the federal anti-gay marriage law.
Kennedy has written the court’s three prior gay rights decisions, including the case from two years ago. All eyes are on him for any signals of his intention this time.
At the Supreme Court, the opposing states hoped to reframe the debate.
“This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy: Who decides, the people of each state or the federal judiciary?” John Bursch, representing Michigan, wrote in his main brief to the court.
A decision is expected in late June.
Story by the Associated Press