WASHINGTON, D.C. – The U.S. Supreme Court heard oral arguments on same-sex marriage Tuesday. Does the state have the power to ban same-sex marriage within its borders, or is it a right under the Constitution? Does a state have to recognize a same-sex marriage from another state? These are the questions the high court is considering.
The case Supreme Court justices heard Tuesday morning is a consolidation of multiple cases from Ohio, Kentucky, Michigan and Tennessee.
The Supreme Court had declined to hear the question of same-sex marriage last year, having denied hearing Utah’s own case in September.
However, unlike the cases of Utah and other states in which U.S. District Courts shot down their same-sex marriage bans, the 6th Circuit Court of Appeals upheld the bans in the Ohio, Kentucky, Michigan and Tennessee cases. The Supreme Court announced in January it would hear arguments in the cases.
The court is expected to rule on the case in June.
In her opening arguments before the high court, Mary Bonauto, the lawyer representing the same-sex couples involved, said:
States do have primacy over domestic relations except their rules must respect the constitutional rights of persons. … And here we have a whole class of people who denied the equal right to be able to join in this very extensive and government institution that provides protections for families.
Chief Justice John C. Roberts Jr. said every definition of marriage he had looked up, prior to a few years ago, defined marriage as being between a man and woman as husband and wife.
“Obviously, if you succeed, that core definition will no longer be operable,” Roberts said.
Bonauto replied she hopes it isn’t because that definition currently excludes same-sex couples.
Justice Anthony Kennedy, who is considered a possible swing vote in the court’s eventual ruling, said a word that kept coming to him was “millennia,” as related to how long marriage has been defined as being between a man and woman only as husband and wife.
“This definition has been with us for millennia,” Kennedy said. “It’s very difficult for this court to say, ‘Oh, well, we know better.’”
Representing the states before the Supreme Court was attorney John Bursch. As he began addressing the chief justices, he said the issue before the court was not about how to define marriage but rather who gets to decide that question.
“Is it the people, acting through the democratic process, or is it the federal courts?” Bursch said. “We’re asking you to affirm every individual’s fundamental liberty interest in deciding the meaning of marriage.”
Amendment 3, Utah’s own same-sex ban, was passed in 2004 with a voter majority of 65 percent. The amendment recognizes marriages as being between a man and woman only and doesn’t recognize same-sex marriages, or civil unions, from other states. Amendment 3 was struck down as unconstitutional in December 2013.
“Marriage is open to a vast number of people,” Justice Stephen Breyer said, asking why the states should be allowed to deny same-sex couple the ability to marry. “There is a group of people (the states) won’t open marriage to, so they have no possibility to participate in that fundamental liberty – that is being of the same sex who wish to marry. And so we ask, ‘Why?’”
Bursch argued that it is in the states’ interest to promote traditional marriage as it pertains to child-rearing and binding biological parents to their children. The state has no interest in the emotional commitment between adults, but rather the relationship that is most beneficial to raising children, which traditional marriage fosters, he argued.
“If you’re changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment, then adults could think, rightly, that this relationship is more about the adults and not about the kids,” Bursch said.
The liberal bloc of the justices, as well as Kennedy, sounded skeptical of Bursch’s argument during their questioning.
The last segment of the arguments addressed the question of whether or not states should have to recognize same-sex marriages performed in other states.
Attorney Douglas Hallward-Driemeier, representing same-sex couples, said a state shouldn’t have the power to “effectively dissolve” an out-of-state same-sex marriage without sufficient justification.
“There is not only a right to be married, but a right to remain married,” Hallward-Driemeier said.
If states where same-sex marriage isn’t legal are made to recognize out-of-state marriages, then “one state would essentially set policy for the entire nation,” Roberts said.
Justice Ruth Bader Ginsburg noted that if the high court rules same-sex marriage a constitutional right, the second question before the court will be moot.
The Supreme Court is anticipated to rule on same-sex marriage in June.
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