Update 3:30 PM:
Following the conclusion of oral arguments in Tuesday's landmark U.S. Supreme Court hearing, advocates displayed cautious optimism that after years of legal wrangling, the U.S. legal system may finally support full marriage equality.
"The case for the freedom to marry shone through at every turn in the argument, undimmed and undeniable," said Freedom to Marry founder and president Evan Wolfson following the hearing. He added that "it should be clear to a majority of justices, as it has been to a cascade of lower courts and a national majority for marriage, that there is simply no good reason, no just principle, no argument, no evidence to justify perpetuating marriage discrimination any longer."
Though framed by supporters of same-sex marriage bans as an issue of states' rights, arguments against marriage discrimination largely focused on the principle of equality.
"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," said attorney Mary Bonauto, who argued in favor of marriage equality on behalf of petitioners in Question 1 in Obergefell v. Hodges, in her closing argument.
During the question period, the liberal bloc of the Court also voiced clear concern over the legal discrimination perpetuated by such bans.
Justice Stephen G. Breyer questioned the right of states to be able to exclude gay people from marriage. "Marriage is open to vast numbers of people," Justice Breyer said, adding that same-sex couples "have no possibility to participate in that fundamental liberty. And so we ask, 'Why?'"
The two potential "swing votes," Chief Justice John Roberts and Justice Anthony Kennedy, both expressed ambivalence over what they saw as redefining the convention of marriage, which Kennedy said "has been with us for millennia." However, Kennedy refuted claims that same-sex marriage harms conventional marriages or lacks the same "noble purpose."
And Roberts, echoing the concerns of the liberal bloc, asked why marriage bans don't amount to a "straightforward question of sexual discrimination?"
During the hearing, while marriage equality advocates rallied outside the courthouse, an anti-gay rights protester interrupted the proceedings, yelling that supporters would "burn in hell." The individual was escorted out by security.
Though the Justices will reportedly vote on the decision later this week, a ruling is not expected until June. SCOTUS blog reporter Amy Howe says that there is "no clear indication" where Kennedy—and thus the rest of the Court—is headed.
Once again, it may all come down to Justice Kennedy, and he didn’t tip his hand during his questions and comments in the first part of today’s arguments. Kevin Russell, who contributes frequently to this blog, has suggested that the Chief Justice’s questions during the second part of the oral argument could be part of an effort to broker a compromise, in which the Court rules that there is no right to same-sex marriage but still gives the plaintiffs much of what they are seeking by requiring states to recognize same-sex marriages that happen somewhere else. Notably, however, Justice Anthony Kennedy was quiet during the arguments on the recognition question. Does that silence mean that he had already decided to rule for the plaintiffs on the first question, eliminating any need to worry about the second one?
Marking what advocates call "a significant legal and cultural moment for the country," the U.S. Supreme Court will hear arguments Tuesday in Obergefell v. Hodges, the landmark gay marriage case that many legal experts believe will pave the way for full marriage equality in all 50 states.
The Court is reviewing a November 2014 decision from the 6th Circuit Court of Appeals, one of only three federal courts to uphold marriage discrimination since June 2013, the last time the Supreme Court heard arguments on marriage for same-sex couples.
Tuesday's arguments will be divided into two parts:
- The first will tackle whether the U.S. Constitution's guarantees of due process and equal protection under the law cover a right to same-sex marriage.
- The second concerns whether states must recognize same-sex marriages that take place out-of-state.
After more than two decades of litigation, a decision could determine whether gay men and women have a nationwide right to marry.
As Gay & Lesbian Advocates & Defenders (GLAD) put it, "The oral arguments mark a significant legal and cultural moment for the country, capping nearly twenty-five years of legal challenges, grassroots activism, legislative advocacy, and steady change in public opinion in favor of the freedom to marry for same-sex couples."
Currently 37 of the 50 U.S. states and Washington, D.C. allow same-sex marriage. A recent poll by the Washington Post and ABC News found that a a record-high 6 in 10 Americans say they support same-sex marriage.
The Court is expected to rule by the end of June.
"In a sign of the case's significance," The Hill wrote Monday, "the justices have dedicated two and a half hours to arguments on Tuesday morning, 90 minutes more than the court typically allows."
Mary Bonauto from Gay & Lesbian Advocates & Defenders ... will lead off the arguments in favor of marriage equality for 30 minutes, followed by 15 minutes from Solicitor General Donald Verrilli Jr. Then, John Bursch, Michigan’s former solicitor general, will argue in defense of marriage bans for 45 minutes. Bonauto will then give a brief rebuttal.
Doug Hallward-Driemeier ... will lead of about 30 minutes of arguments on the recognition question, and Joseph Whalen from the Tennessee Attorney General’s Office will defend the recognition bans for 30 minutes. Finally, Hallward-Driemeier will give a brief rebuttal.
According to the Washington Post:
Hallward-Driemeier and Bonauto were selected last month after a legal 'bake-off' in Michigan to decide who would advocate for gay marriage before the high court. Details about the bake-off remain under wraps, but those familiar with the process say that in order to select the best representative before the high court, lawyers typically negotiate among themselves.
The winners are picked based on several factors, including how they perform in mock trials as well as how deeply lawyers have been involved in the issue to be heard.
Previewing the oral arguments for USA Today, reporter Richard Wolf noted that state bans on same-sex marriage have been justified based on judicial precedent, states' rights, regulating procreation, child-rearing, and centuries-old tradition.
"At the heart of the case is a tug of war between the 14th Amendment's guarantees of due process and equal protection, and the rights of states—and, by extension, voters—to make their own laws," Wolf wrote.
While the democratic process might be a worthy goal, however, all other appeals courts to review same-sex marriage bans have relegated it to secondary status when compared to the rights of gays and lesbians to marry. They note the Supreme Court denied states the right to prevent mixed-race couples, prison inmates and people owing child support from marrying.
Many news outlets have predicted, as the Wall Street Journal did on Sunday, that Justice Anthony Kennedy, a Ronald Reagan appointee, will cast the deciding vote.
"Over the past 20 years, Justice Kennedy has written all three of the court’s major gay-rights opinions, each one adopted with the help of liberal justices over the dissent of fellow conservatives," wrote WSJ journalist Jess Bravin. "Now, with marriage arguments coming on Tuesday, 78-year-old Justice Kennedy is poised to cement his place as a pivotal figure in the gay-rights movement."
NPR's Nina Totenberg agreed that it's "likely that Kennedy will once again join the liberals in this term's challenge to state bans on same-sex marriage"
But, she added, "nothing is assured, especially since Kennedy's 2013 opinion also stressed the traditional right of the states to define marriage."
Meanwhile, Jesse Choper, professor of public law at the University of California, Berkeley School of Law, told The Hill that while he too is expecting a 5-4 ruling from the court in June in favor of same-sex marriage, "he wouldn’t rule out a more decisive ruling in which one or more of the conservative justices—potentially Chief Justice John Roberts—sided, along with Kennedy, with the court’s liberal wing."
The Hill reports: "Roberts, Choper said, could vote in favor of marriage with the other five justices to preserve the image of the court in an era of expanding gay rights or to control who writes the decision."
"If there’s already five, it doesn't cost him anything to make it six," Choper said. "The deed is done."
GLAD produced a video leading up to Tuesday's historic arguments: