John M. Becker

Marriage at SCOTUS: Cautiously Optimistic

Filed By John M. Becker | April 28, 2015 5:30 PM | comments

Filed in: Gay Icons and History, Living, Marriage Equality
Tags: gay marriage, marriage equality, same-sex marriage, SCOTUS, Supreme Court

scales_justice.jpgThis morning, the United States Supreme Court heard two and a half hours of oral arguments on one of the great civil rights questions of our time: whether the Constitution protects the right of same-sex couples to legally marry.

Attorneys for both sides -- the states of the Sixth Circuit defending their marriage discrimination amendments (Michigan, Ohio, Kentucky, and Tennessee) and the plaintiffs seeking to overturn them -- were peppered with rough questions, but the court seemed largely split along ideological lines.

Justices Scalia and Alito appeared to side with the states. Thomas, as usual, remained silent but is considered a safe vote against marriage equality. The questions asked by Justices Breyer, Ginsburg, Sotomayor, and Kagan seemed to indicate that they will vote in favor of same-sex marriage rights. But the leanings of Justice Anthony Kennedy and Chief Justice John Roberts were more difficult to determine.

Kennedy, author of the Court's three landmark gay-rights decisions (Romer in 1996, Lawrence in 2003, and Windsor in 2013), initially expressed concern about the Court deciding that "we know better" than a definition of marriage that "has been with us for millennia." But he then pointed out that the amount of time between Brown v. Board (1954) -- which struck down state-sponsored school segregation -- and Loving v. Virginia (1967) -- which invalidated laws banning interracial marriage -- was approximately the same as the interval between the 2003 Lawrence decision striking down sodomy laws and the current cases before the justices. The implication was that the Court likes to move gradually when advancing civil rights, but that now may be an appropriate time to move forward. Kennedy also said that same-sex relationships have dignity and can have a "noble purpose."

supreme-court-side-view.jpgChief Justice Roberts told attorney Mary Bonauto that the plaintiffs aren't seeking to join the institution of marriage, but rather to fundamentally change it, and fretted that ruling for marriage equality would short-circuit an important and ongoing public discussion. But later on, he seemed uncomfortable with states refusing to recognize other states' marriages and wondered whether marriage discrimination should be more properly understood to be discrimination on the basis of sex.

This ambiguity has led court-watchers to predict widely varied outcomes. BuzzFeed's Chris Geidner predicts a 5-4 win for marriage equality with Roberts as a possible sixth vote; Mark Joseph Stern over at Slate sounded decidedly less optimistic. SCOTUSblog's Amy Howe wrote that "it could turn out to be a nailbiter," while analysts at the Huffington Post said they thought the Court was not debating if marriage equality should come to America, but how.

From where I sat -- which, incidentally, was in an office adjacent to the courtroom where I couldn't see the justices but could hear the arguments (and I could tweet! Check it out.) -- I'm cautiously optimistic and inclined to agree with those predicting a 5-4 decision in favor of the freedom to marry. Kennedy played his cards close to his chest, but his sympathies seemed to tip in the direction of equality (and his previous opinions make it difficult to believe he'd reverse course here).

And the arguments put forth by marriage opponents were laughably absurd: that allowing same-sex couples to marry might discourage opposite-sex couples from marrying, having children, or bonding with their children. These are the same kinds of nebulous boogeymen that have been knocked down time and time again in the lower courts, most notably by Judge Richard Posner of the 7th Circuit Court of Appeals. If that's all they've got, I'm feeling good about our chances.

As an aside, another notable moment came about half an hour into the proceedings when a random religious nutter male attendee interrupted things, shrieking at the top of his lungs that homosexuality is an abomination condemned by the Bible and that "you'll all burn in hell!" The man continued screaming as security dragged him out of the courtroom and was so loud that his voice could be heard echoing through the building for several minutes afterward as police hauled him off to wherever they were taking him. A court official standing next to me rolled his eyes, shook his head, and said, "That doesn't help his side at all."

Fingers crossed!

As the arguments unfolded inside the building, supporters and opponents of marriage equality jammed the plaza outside, holding competing rallies. Fiona Dawson reports for The Bilerico Project that pro-LGBT demonstrators significantly outnumbered anti-equality ones. Let Fiona take you to the steps of the Supreme Court with her exclusive video report:

Transcripts and audio from today's oral arguments are below.


Supreme Court oral arguments on gay marriage (Part 1)

Supreme Court oral arguments on gay marriage (Part 2)


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