This morning, the United States Supreme Court heard oral arguments in Obergefell v. Hodges, the landmark case that could finally legalize marriage equality nationwide.
The Court will consider two primary questions: First, whether state bans on same-sex marriage are constitutional, and second, whether states that outlaw marriage equality can refuse to recognize same-sex marriages legally performed in other states. Marriage equality is currently legal in 37 states (plus Washington, D.C.). The four states defending their bans on marriage equality — Michigan, Ohio, Tennessee, and Kentucky — previously won a lower court case when arguing on behalf of marriage discrimination, whereas six other federal appeals courts found marriage bans in their districts unconstitutional.
In a couple of months, we could see an end to the legal discrimination that deems same-sex unions second-class in a quarter of the country. Or, we could see states all over the country jump at the chance to enshrine bigotry into their constitutions.
But first, the Supreme Court must make a decision.
This morning’s impassioned arguments drew voices from across the political spectrum, and both the audio (Question 1 and Question 2) and text transcripts (Question 1 and Question 2) are now available for those who weren’t lucky enough to get a seat inside. From the get-go, the Court’s arguments challenging Mary Bonauto, the lawyer who opened Tuesday’s defense of same-sex marriage, were based on historical notions of “traditional marriage” and, in Chief Justice John Roberts‘ words, “redefining the institution” of marriage. Then Justice Samuel Alito jumped on the tradition bandwagon:
JUSTICE ALITO: Well, how do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?
MS. BONAUTO: Your Honor, my position is that times can blind. And if you think about the example of sex discrimination and what it – again, I assume it was protected by the Fourteenth Amendment, but it took over 100 years for this Court to recognize that a sex classification contravened the Constitution.
They went back and forth and Justice Alito seemed dissatisfied with her answers, but then Justice Ruth Bader Ginsburg jumped in to drop some truth bombs about sexism in marriage historically:
JUSTICE GINSBURG: But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t… fit into what marriage was once.
MS. BONAUTO: That’s correct. I mean, for centuries we had… and Europe had this coverture system where a woman’s legal identity was absorbed into that of her husband and men and women had different prescribed legal roles. And again, because of equality and changing social circumstances, all of those gender differences in the rights and responsibilities of the married pair have been eliminated. And that, of course, is a system in which committed, same-sex couples fit quite well.
Boom! One point for the redefinition of marriage (and the abolition of gender roles that have traditionally accompanied it, for that matter).
Justice Antonin Scalia pressed Bonauto about how marriage equality would harm religious individuals who find the concept “unpalatable.” (Really.) Bonauto repeated multiple times that nationwide marriage equality would not require religious officials to conduct marriages that their religious beliefs did not condone, but he remained unconvinced.
JUSTICE SCALIA: I’m concerned about the wisdom of this Court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons. They are not likely to change their view about what marriage consists of. And were the States to adopt it by law, they could make exceptions to what is required for same-sex marriage, who has to honor it and so forth. But once it’s made a matter of constitutional law, those exceptions — for example, is it conceivable that a minister who is authorized by the State to conduct marriage can decline to marry two men if indeed this Court holds that they have a constitutional right to marry? Is it conceivable that that would be allowed?
MS. BONAUTO: Your Honor, of course the Constitution will continue to apply, and right to this day, no clergy is forced to marry any couple that they don’t want to marry. We have those protections.
JUSTICE SCALIA: But right to this day, we have never held that there is a constitutional right for these two people to marry, and the minister is — to the extent he’s conducting a civil marriage, he’s an instrument of the State. I don’t see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. Which means you could have ministers who conduct real marriages that are civilly enforceable at the National Cathedral, but not at St. Matthews downtown, because that minister refuses to marry two men, and therefore, cannot be given the State power to make a real State marriage. I don’t see any answer to that. I really don’t.
Justice Scalia presses on the matter even after Bonauto answers, causing Justice Sonia Sotomayor and then Justice Elena Kagan to jump in and remind him that existing marriage laws already protect religious officials, even outside of same-sex marriage circumstances.
JUSTICE KAGAN: Ms. Bonauto, maybe I’m just not understanding Justice Scalia’s question, but for example, there are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, many, many, many rabbis won’t do that.
Tune in around minute 27 of the Question 1 audio for a cameo from an angry anti-LGBT protester screaming that “if you support gay marriage, you will burn in hell,” after which Justice Scalia comments, “[That] was rather refreshing, actually,” to a room full of laughs.
When Gen. Donald Verrilli, Jr. took the stand after Bonauto, Chief Justice Roberts asked him to follow up on Bonauto’s point that ministers and other religious officials would not be required to participate in same-sex marriages if they didn’t want to. Verrilli approached it from the lens of future legal ramifications:
GENERAL VERRILLI: There is no Federal law now generally banning discrimination based on sexual orientation, and that’s where those issues are going to have to be worked out. And I guess the third point I would make, Your Honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in States where there is no same-sex marriage, where there are, and, in fact, they have arisen many times. There are these commitment ceremonies. For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage. That arose out of a commitment ceremony, and these, you know, commitment ceremonies are going to need florists and caterers.
The arguments over Question 2, state recognition of out-of-state same-sex marriages, focuses decidedly less on the role of religious figures and more on states’ rights. The justices did ask lawyer Douglas Hallward-Driemeier how a state would be expected to respond if asked to recognize an incestuous marriage, a polygamous marriage, or an adult-child marriage that was legal elsewhere. Hallward-Driemeier also had the opportunity to take down the “marriage is for procreation” argument that’s so often touted by conservatives:
MR. HALLWARD-DRIEMEIER: Kentucky has asserted that its interest in only permitting opposite-sex couples to marry is to increase the birthrate. Well, now apply that theory to same-sex couples who are already married. They are already married in the States where they were married. They are already married in half the States in the country. Kentucky would have the Court believe that it is a sufficiently important interest to have that couple disregard their existing marriage vows and obligations to each other to marry someone else in Kentucky in order to procreate biologically even though the couple may already have children together. That, I would dare say, is not a rational justification, much less a sufficiently important one.
And here’s where he especially brings it home:
MR. HALLWARD-DRIEMEIER: As part of a Federal form of government in which the States are equal, the States have ceded some form of their authority. And one is to recognize that when another State creates an enduring relationship, encourages people to, in reliance on the protections the law affords, to establish families, that it is not that other States are simply free to disregard that which those States have created. …
It’s our clients who take marriage seriously. They took vows to each other and bought into an institution that, indeed, as this Court has said, predates the Bill of Rights, that is the most important and fundamental in their lives, and the State should offer something more than mere pretext as ground to destroy it.
Finally, Joseph Whalen, Tennessee’s associate solicitor general, entered the ring for the Question 2 arguments focusing primarily on the needs of children. Here, too, the justices were critical:
MR. WHALEN: Part of the reason why I wanted to mention this in particular [is] because a large part of the Petitioners’ focus has been on the impact on the children that are involved. And I think it’s important for the Court to recognize that in many States, and I can tell you in Tennessee that the definition of parent has always been biologically-based. That marital presumption of parentage has its foundation in biology. It has its foundation in the man-woman relationship. So when and if a State were required to recognize a same-sex marriage and so therefore, change the pronouns and change the terminology to apply–
JUSTICE SOTOMAYOR: Oh, but you do that for adoptions. What’s the problem? This is a really big deal?
MR. WHALEN: It is a big deal, Your Honor, because you are changing the way the State defines a parent. And in the adoption context, you have to understand adoption and the traditional definition of marriage, they work in tandem. They work together. And as Mr. Bursch described, the objective with regard to marriage is to link children with their biological parents. When that breaks down, then there’s adoption. And so yes, there’s an effort to –
JUSTICE SOTOMAYOR: Do you think that a State can fail to recognize the birth certificate of a particular – another State? … Do you think the word “records” in the Constitution includes birth certificates?
MR. WHALEN: Yes.
JUSTICE SOTOMAYOR: So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State’s birth certificate?
MR. WHALEN: I have to admit, Your Honor, I can’t speak to that intelligently.
There is no argument against marriage equality that is not rooted in religious opposition to same-sex unions, conservative attachment to “traditional marriage,” and the harmful belief that there is only one “real” way to have a family. The results of this legal and societal inequity are dehumanizing, humiliating, and even unhealthy. Plain and simple. In her first few sentences, Bonauto said:
If the legal commitment, responsibility, and protection that is marriage is off-limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.
The stain of unworthiness is an incredible descriptor for how millions of LGBT Americans feel when our present lives, our families, and our day-to-day existences are deemed second-class. Unfounded, inane fears that the sky will fall if same-sex couples marry just don’t hold water against the tangible consequences of marriage inequality that same-sex couples face right now. In a piece aptly titled “There’s No Real Case Against Gay Marriage”, Politico’s John Culhane summarizes the evaluation we’re hoping for:
Michigan, Ohio, Tennessee and Kentucky want the Court to look into a crystal ball and imagine that a ruling for marriage equality will lead to the erosion of marriage, an increase in single parenthood, and even, according to a group that styles itself “100 Scholars of Marriage,” a dramatic spike in the number of abortions. But the couples challenging the laws insist the Court look at them and at the many other families affected by the law’s refusal to grant them the rights and obligations — and the dignity — marriage creates. Expect the Court to side with those experiencing real problems in the here and now.
Fingers crossed for a swift, conscientious decision. We’re closer than we’ve ever been.
(Image via Shutterstock)