Yesterday, the United States Supreme Court heard oral argument in the same sex marriage cases. It is difficult to divine how a decision will come out based on oral arguments. The first impression I got after listening to the arguments is that all three litigators in the first half of argument were very well prepared and provided a sober analysis of their sides. Neither side really wilted under questioning and John Bursch, the Michigan Solicitor General, was impressive despite a tough audience in Sotomayor.
Early in the argument, Chief Justice Roberts questioned Mary Bonauto, the attorney for the plaintiffs, whether their argument was not one of Equal Protection under the 14th Amendment, but if they were attempting to change the very definition of marriage that existed for millenia. Justice Kennedy picked up on that theme also and wondered if the Court, should they rule in favor of gay marriage, would be moving too quickly. He seemed to be suggesting that the democratic process had not been played out and that gay marriage was a relatively new phenomena being first legalized in the Netherlands in 2001. For her part, Bonauto brushed aside those arguments and reframed the issue as one of Equal Protection. John Roberts rightfully noted that Maine refused gay marriage one year only to reverse themselves three years later- the democratic process in action. However, as Bonauto noted, Michigan’s case was a state constitutional amendment, not a law as in Maine, and that there were political structural barriers to amending a constitution while potentially thousands of gay couples would be denied 14th Amendment rights.
When it was Donald Verilli’s turn in support of the plaintiffs (and gay marriage) for the United States government, he refused to acknowledge that marriage was a fundamental right stating that the amicus brief did not discuss that issue and he was unwilling to argue it. However, he did seem to concede that states have a right to place restrictions on marriage if they were equally applied, but that same sex marriage bans excluded a class of people completely.
Justice Alito largely argued the slippery slope aspect of the case. He wanted to know the limits should they rule in favor of gay marriage. For example, he used the analogies of what some states define as incestuous marriages, and polygamy. There Bonauto stated that was not at issue and that states had a right to disallow those marriages. Alito then pressed her on the limiting principle, or where the line stood.
Scalia had an interesting line of questioning about whether if they ruled in favor of gay marriage, would this then force a minister, for example, to marry a gay couple in contradiction of their religious beliefs. Both Bonauto and Verilli argued that would not be a problem because states in implementing legislation could address those important First Amendment conflicts in a reasonable manner. Scalia pointed out that it would be easier if gay marriage was allowed as a matter of state law, but not if they ruled same sex marriage a constitutional right. Verilli later conceded that it would be possible that litigation in that area may visit the Court in the future in that area.
If anyone at this point held the belief and held out the hope that Kennedy would side with the conservative wing on the Court, those hopes and beliefs were partially dashed when the states presented their side. For his part, Bursch presented a good case for the state’s interest in opposite-sex marriages arguing that changing the definition of marriage could have consequences over time. He used the example of how no-fault divorce laws have created numerous single-parent families and the number of out of wedlock births. Without saying as much, he suggested that by redefining marriage- Roberts’ argument- the plaintiffs were somehow demeaning marriage and focusing the entire discussion on the two adults rather than the children. He kept reiterating the state’s interest in promoting opposite sex marriage for procreation purposes and that procreation was the glue to cemented marriages. In the context of procreation and child-rearing, this led to a lively discussion about adoption.
Kennedy then interjected that the state was conferring dignity upon the actors in a marriage which Bursch disagreed with saying that perhaps culture conferred that dignity, but that was not the rationale of the states, nor was it their stated interest.
In the second part of oral argument, the question was whether if a gay marriage was performed and recognized in one state, should it be recognized in a state that disallows it. Here, the state got into some trouble and tried to make a categorical assertion that the Full Faith and Credit Clause of Article IV did not apply to marriage certificates. This drew a surprised response from Scalia and Alito and, to a lesser extent, Roberts who appeared to agree somewhat with the argument- leaving aside all the other reasons for possible non-recognition (incest, age of consent, etc.)- that cross-state recognition generally existed because the fundamental definition of marriage (that is, opposite sex marriage) was unanimous across state lines. The state argued that because another state changed the definition, they were imposing that change on other states.
Of course, the Court need only answer this second question in any detail if and only if they decide in favor of the states on the first question and gay marriage prohibitions are upheld. If they rule in favor of gay marriage, the second question is moot.
It appears as if this case will be decided 5-4, possibly in a plurality fashion, in favor of same sex marriage with differing reasons. But, the controlling vote will be that of Kennedy. Expect him to wax poetic about the sanctity of marriage, dignity and all that. By not outright declaring marriage a fundamental right outside the considerations of procreation, they protect states to enact and enforce laws against zoophilia, incest, age of consent and polygamy. I suppose Sotomayor and possibly Kagan and Ginsburg will decide that gay marriage bans fail to pass the rational basis test. Breyer also leans in that direction as evidenced by his “I got reasons one and two, now give me reasons three, four and five” line of questioning. It would be very surprising to this writer if the case came anything but 5-4, or if it came out in favor of the states involved in this case.