The Supreme Court appeared both cautious and deeply divided Tuesday on whether to change an opposite-sex definition of marriage that several justices noted has existed for “millennia.”
Finally addressing head-on the question of whether gays and lesbians should be allowed to marry nationwide, the court’s key conservatives indicated that a victory for same-sex couples would not come easily.
Their ambivalence about leading the country into largely unknown territory highlighted a 2 1/2-hour oral argument that was among the most consequential in the court’s 226-year history. Faced with an uncertain future, it seemed, several justices would prefer to leave marriage laws to the states.
At the same time, two conservatives — Justice Anthony Kennedy and Chief Justice John Roberts — showed sympathy for same-sex couples unable to marry in 13 states because marriage laws are intended to regulate procreation.
“Same-sex couples say, of course, ‘We understand the nobility and the sacredness of the marriage,'” said Kennedy, who wrote the court’s 2013 decision that allowed legally married gay and lesbian couples to get federal benefits. “We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”
“I’m not sure it’s necessary to get into sexual orientation to resolve the case,” said Roberts, who dissented from the 2013 decision. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
If those questions put former Michigan solicitor general John Bursch on the defensive, the same was true for Mary Bonauto, a pioneer of the same-sex marriage movement, and U.S. Solicitor General Donald Verrilli, who argued that gay and lesbian marriages should be protected under the Constitution.
“The word that keeps coming back to me in this case is ‘millennia,'” said Kennedy, who often casts the deciding vote on the court. “This definition has been with us for millennia. It’s very difficult for the court to say, ‘Oh, well, we know better.'”
Roberts echoed that point, telling Bonauto, the lead lawyer for same-sex couples challenging states’ marriage bans, “You’re not seeking to join the institution, you’re seeking to change what the institution is.”
The justices’ eventual ruling on the case — actually six cases with 32 plaintiffs consolidated from Ohio, Michigan, Tennessee and Kentucky — will determine whether same-sex marriage becomes legal across the country, or whether states retain the authority to ban it. A decision is expected by late June.
SOURCE: Richard Wolf and Brad Heath