WASHINGTON — The U.S. Supreme Court debated at length Tuesday (April 28) whether the Constitution requires states to license or recognize same-sex marriages in a landmark case that could produce a nationwide revision of the institution legally and elevate already existing concerns about religious liberty.
In two and a half hours of oral arguments, the nine justices questioned and listened to advocates on both sides of the issue. It’s the next step toward a decision that the justices are expected to issue in late June or early July.
The court has at least three options. It could: (1) Legalize same-sex marriage throughout the country; (2) enable states to maintain their authority to define marriage as only a heterosexual union; or (3) require states to recognize gay marriages from other states without prohibiting them from licensing only male-female marriages. Potentially, the justices also could rule in such a way as to deliver a wider victory for the rights of gays and lesbians.
Russell Moore, president of the Ethics & Religious Liberty Commission (ERLC), said in a written statement April 28 he doesn’t think the Supreme Court “should redefine marriage, because I don’t think the Court invented marriage in the first place.”
“The action of finding some illusory 14th Amendment right to same-sex marriage in the Constitution — a right unknown not only to the Constitution’s drafters and ratifiers but to every generation of this country and every other until the most recent years — will have deep and wide consequences, for the stability of families and for freedom of religion,” said Moore. “I hope the Court does the right thing and stays within the limits of its authority — recognizing that the state did not create the family, and cannot recreate it.”
The questioning by the justices during the arguments proceeded in predictable fashion. Chief Justice John Roberts and Associate Justices Antonin Scalia and Samuel Alito — some of the more conservative members of the court — seemed to express misgivings about the plea to change the marriage laws of all the states. At one point, Roberts challenged Mary Bonauto, representing same-sex couples, when he questioned if they were “not seeking to join the institution” of marriage but to “change what the institution is.”
Meanwhile, Associate Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan voiced skepticism about the arguments in defense of states maintaining the traditional definition of marriage. Some described marriage as a “fundamental right” in which the states in question prohibit same-sex couples from participating.
As is his norm, Associate Justice Clarence Thomas did not speak.
The arguments took place at a time when same-sex marriage is legal in 37 states and the District of Columbia. The state total nearly triples the 13 states where it was legal in mid-2013. Court rulings have produced legal gay marriage in more than two-thirds of those states.
The expansion of same-sex marriage has resulted in a growing clash between the rights of gay couples and the religious freedom of individuals and organizations. Florists, bakers, photographers and other business owners who have conscientious objections to providing their services for same-sex ceremonies have been penalized or are facing penalties for their refusal. The most recent example came April 24, when an Oregon judge recommended a fine of $135,000 for former bakery owners Aaron and Melissa Klein for refusing to bake a cake for a lesbian couple’s ceremony.
The April 28 arguments — which were 90 minutes longer than normal — came in a case, Obergefell v. Hodges, from the Sixth Circuit Court of Appeals. In a 2-1 decision in November, it became the first federal appellate court to rule states have the authority to define marriage as only between a man and a woman. Five other appeals courts have invalidated state laws that prohibited gay marriage.
The opinion by the Sixth Circuit Court, based in Cincinnati, took place in challenges to laws in Kentucky, Michigan, Ohio and Tennessee — states where voters approved constitutional amendments between 2004 and 2006 that limit marriage to a man and a woman.
Courts have overwhelmingly issued opinions in favor of gay marriage since the Supreme Court struck down a section of the federal Defense of Marriage Act (DOMA) in June 2013, saying it violated “equal protection” under the Constitution by refusing to recognize same-sex marriages. Though the high court refused to say states could not limit marriage to heterosexual couples, most courts have used the decision as a basis for striking down state laws that define marriage as only between a man and a woman.
In the January announcement that it would review the Sixth Circuit’s opinion, the justices said they would consider two questions: (1) Does the 14th Amendment to the U.S. Constitution require a state “to license a marriage between two people of the same sex?” and (2) does the 14th Amendment require a state “to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”
In the 90 minutes allotted to the first question, Bonauto — longtime director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders — and U.S. Solicitor General Donald Verrilli argued on behalf of same-sex couples challenging the state laws. John Bursch, former solicitor general of Michigan, advocated for the states.
On the second question, the Supreme Court heard from Douglas Hallward-Driemeier, a Washington lawyer who formerly served as an assistant to the U.S. solicitor general, in behalf of gay couples and Joseph Whalen, associate solicitor general of Tennessee, for the states.
Hundreds of people gathered April 28 on the sidewalk in front of the Supreme Court building to voice their support for or against same-sex marriage.
— by Tom Strode | BP