Seats inside the U.S. Supreme Court were at a premium today for the oral argument in Obergefell v. Hodges, the marriage equality case.
I was fortunate to get a spot in the press gallery. I was in the back row, and my view was obstructed by two large columns, but I’m not complaining; I would have been willing to hang from the rafters for this historic argument, a marathon session that featured five attorneys and lasted two and a half hours.
I’ll cut to the chase: No, I don’t think it’s possible to predict the outcome from the argument. Justice Anthony M. Kennedy is widely regarded as the crucial swing vote, and he tended to play both sides of the aisle.
Early in the argument, Kennedy quizzed Mary L. Bonauto, the attorney arguing for the same-sex couples, asserting that one man/one woman marriage has been the standard for a millennia, and “it’s hard for the court to say we know better.”
But later, Kennedy questioned John J. Bursch, special assistant attorney general for the state of Michigan who argued against marriage equality, and asserted that same-sex couples are really seeking the “dignity” that only legal marriage can bring.
Bursch labored to play the hand he was dealt. The main thrust of his argument seemed to be that legalizing same-sex marriage will somehow lead opposite-sex couples to take marriage less seriously, and this will harm children. It’s not a very good argument, and several of the progressive justices hammered Bursch on it. They noted that if ensuring the well-being of children is the state’s goal, it would make sense to extend marriage to the many same-sex couples who are raising kids.
The church-state aspect was raised a few times. Justice Antonin Scalia relentlessly badgered Bonauto, asserting that clergy might be compelled to perform marriages for same-sex couples.
Insisting that he has concerns about “imposing an action that is unpalatable to many people for religious reasons,” Scalia repeatedly raised the specter of ministers being forced to marry same-sex couples. Bonauto dismissed the concern, pointing out that the First Amendment gives clergy the right to determine who qualifies for sacraments.
Scalia continued to press the point, which led Justices Sonia Sotomayor and Elena Kagan to jump in. Sotomayor noted that no clergy members have been forced to perform same-sex marriages in the states where marriage equality is the law, while Kagan pointed out that some rabbis will not marry a couple unless both parties are Jewish, and none of them have been legally forced to change their policies.
(Not long after this exchange, Bonauto yielded the podium to U.S. Solicitor General Donald B. Verrilli Jr. Verrilli had just started speaking when a man in the spectators’ gallery began screaming the standard fundamentalist Christian threats of hellfire and damnation. As the Supreme Court police dragged the protestor away, Scalia quipped that the man's outburst "was rather refreshing, actually.”)
Remember, the high court heard arguments today on two questions: One is whether the 14th Amendment, which in part guarantees “equal protection” of the law, requires states to recognize same-sex marriages. The other is whether the 14th Amendment requires states where same-sex marriage is not legal to recognize such unions when they are performed in states where the practice is legal and the couple moves.
Let’s say Adam and Steve get legally married in Maryland, where marriage equality is the law, but then they move to Tennessee, where it’s not legal. What happens to their marriage? Are they lawfully wed or not? If one dies, what happens to their communal property? Their children? What exactly is their legal status?
Normally this would not be an issue. States routinely recognize as valid marriages performed in other states. Article IV, Section 1 of the Constitution, the “Full Faith and Credit Clause,” requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” But some states don’t want to do that in the case of same-sex marriage.
We could see a split decision. The Supreme Court could decline to extend marriage equality nationwide, but require the states where it’s not legal to recognize same-sex marriages performed in states where it is. (Even Scalia seemed to concede that there’s no way around the Full Faith and Credit Clause.) In essence, the court could kick the can down the road and create a kind of “same-sex marriage lite.” Same-sex couples who could afford it could go to a state where the practice is legal, and then move back home and have their marriage legally recognized.
The court may see that as a Solomonic solution. I consider it something of a cop out, but with a court this divided, anything is possible.
Lots of people will be analyzing the high court’s argument today. Many words will be parsed, and many opinions will be offered. The only thing we can say for sure is we won’t know where we’re headed until we get the full opinion at the end of June.
P.S. If you would like to listen to the argument yourself, the audio is here.