As expected, a deeply divided United States Supreme Court heard arguments on Tuesday about status of same-sex marriage, and again Justice Anthony Kennedy is the focus of attention.
After two and half hours of arguments, legal scholars will try to parse the questions offered by Kennedy, who is seen as the swing vote in the case of Obergefell v. Hodges.
The Justices are considering two questions: Does the 14th Amendment require a state to license a marriage between two people of the same sex? And does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The appeal in front of Justices came from same-sex couples who were denied a right to marry after a federal court upheld same-sex marriage bans in Ohio, Michigan, Kentucky and Tennessee.
The arguments over the first question lasted about 90 minutes. Attorney Mary Bonauto argued for the plaintiffs.
Justice Kennedy first asked questions about the traditional definition of marriage over the “millennia.”
"The word that keeps coming back to me is 'millennia,'" said Kennedy. "This definition has been with us for millennia. It's very difficult for the court to say, oh well, we know better."
Then other conservative Justices asked about other societies that excluded same-sex couples from marriages, and exchanges ensued between the Justices and Bonauto about the history of same-sex couples in society and long-held marriage definitions.
Chief Justice John Roberts also asked questions about changing the traditional definition of marriage. "You're seeking to change what the institution is," Roberts told Bonauto. But he also had questions about how the exclusion of same-sex marriages didn’t represent sexual discrimination.
Justice Antonin Scalia also linked to question to the issue of a state’s right to decide its own marriage laws. Scalia said that the issue wasn’t about same-sex marriage, "but who should decide the point." Scalia also asked about courts imposing same-sex marriage requirements on a state that "is unpalatable to many for religious reasons."
Justice Ruth Bader Ginsburg also discussed marriage today as an “egalitarian” institution that wasn’t dominated by one person in the relationship.
Bonauto closed her argument with direct answer to Scalia’s question of “who decides.” “It’s not the government, it’s up to the individual to decide who to marry,” she said.
Kennedy’s other questions in the first set of arguments focused on the “millennia”-long definition of marriage and the ability of marriage to comport dignity to same-sex couples, and their children.
He also asked attorney John Bursch, representing the four states that ban same-sex marriage in the lawsuit under consideration, to explain how granting same-sex couples the right to marry would harm traditional marriages.
Justice Stephen G. Breyer also asked why states should be able to exclude same-sex couples from marriage. “Marriage is open to vast numbers of people,” Breyer said, asking why same-sex couples “have no possibility to participate in that fundamental liberty. And so we ask why.”
Arguments over the second question, about states recognizing same-sex marriages from other states, featured very little questioning from Kennedy.
Chief Justice Roberts did wonder how states' rights would be affected if residents of states that banned same-sex unions could get married elsewhere, then return home and demand recognition.
“We live in a very mobile society. People move all the time,” Roberts said. “The result would be that one state could set the policy for the entire country.“
Justice Scalia then asked Joseph Whalen, Tennessee’s associate solicitor general, why states shouldn’t be forced to recognize same-sex marriages performed in other states, citing Article 1, Section 4, of the Constitution, which says, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
“Why, then, should Tennessee be free to ignore a marriage performed in, say, New York?” Scalia asked.
Whalen responded that the Full Faith and Credit Clause shouldn’t compel states to recognize actions taken by other states that violate their own marriage laws.
The arguments concluded at about 12:30 p.m. ET, but they will be heavily debated and analyzed over the next two months. A Supreme Court decision is expected in late June.
