Obergefell v. Hodges – Part 2

The U.S. Supreme Court is hearing the same-sex marriage appeals from the Sixth Circuit Court of Appeals this morning under the case designation Obergefell v. Hodges. The audio for the second half of the oral argument (Question 2) has now been posted on the Court’s web site. Audio.

UPDATE: Transcript now available.

Robert Barnes, the U.S. Supreme Court reporter for the Washington Post reports, Justices appear split on right of gays to marry:

SSmarriage-300x185Supreme Court justices broke along familiar ideological lines Tuesday as they considered whether same-sex couples enjoy a constitutional right to marry, with Justice Anthony M. Kennedy in a familiar role as the apparent decider in a landmark gay-rights case.

Kennedy asked tough questions of both sides.

Why should nine unelected justices change the definition of marriage as only between a man and a woman when that concept has existed for “millennia?” Kennedy asked attorney Mary L. Bonauto, who is representing gay couples in the case.

On the other end, he questioned John Bursch, representing Michigan and other states with same-sex marriage bans, about their procreation-centered view of marriage. Why do same-sex couples not deserve the “same ennoblement” of their relationships that others receive? he asked.

The solemn, hushed nature of the proceeding was shattered by a protester who shouted that the Bible teaches that those who engage in homosexuality will “burn in hell for eternity.” He could be heard shouting for minutes even after security dragged him from the courtroom.

Proponents of same-sex marriage were first at the podium as they challenged laws from Michigan, Ohio, Kentucky and Tennessee. The justices are considering two questions: whether the Constitution requires states to issue marriage licenses to same-sex couples and whether states must recognize same-sex marriages performed in other states where they are legal.

Bonauto argued that limiting marriage to a man and a woman deprives gay and lesbian couples of this valued right. To deny it leaves them with a “stain of unworthiness,” she said.

Bonauto received a boost from Justice Ruth Bader Ginsburg, who pointed out that legal views of marriage have changed to make them more “egalitarian.”

But Bonauto faced repeated questions about the historical nature of marriage as a bond between genders – which Justice Stephen G. Breyer described as “the law everywhere for thousands of years.”

“Suddenly,” Breyer said, “you want nine people outside the ballot box to require states to change [this].”

For the most part, however, it was the conservative justices with the sharpest questioning for Bonauto.

When she said the institution of marriage would not be harmed by gay couples being allowed in, Chief Justice John G. Roberts Jr. stopped her.

“You’re not seeking to join the institution, you’re seeking to change the institution,” he said.

Justice Samuel A. Alito Jr. asked if the definition of marriage was simply a commitment between loving consenting adults, how could a state withhold that from two women and two men who decided to marry.

Justice Antonin Scalia said that if the decisions on marriage continue to be made democratically by the states, those states could make religious accommodations that would not be possible if there was a decision that it same-sex marriage was a constitutional right.

Solicitor General Donald B. Verrilli Jr., arguing for the same-sex couples on behalf of the Obama administration, said many of the arguments were also made before the court in 1967 struck down state prohibitions on interracial marriage.

Withholding marriage from same-sex couples repeats the same discrimination, he said. “I don’t know why we’d want to repeat that history,” he continued.

The liberal justices repeated pressed Bursch about why opening marriage to same-sex couples would damage the state’s interests, which he defined as promoting mothers and fathers to stay together to raise any children they might have.

“Nobody’s taking that away,” said Justice Sonia Sotomayor.

Heterosexual couples would have “the very same incentive to marry,” said Justice Ginsburg.

But Bursch said the states only had to prove that their reasons for limiting marriage to a man and a woman are “so irrational that it’s unconstitutional.”

Roberts asked a question that neither side had pressed. If a woman wants to marry a man, she can. If a man wants to marry a man, he can’t. Why isn’t that sex discrimination, he wondered.

The recognition of a constitutional right would mark the culmination of an unprecedented upheaval in public opinion about gay rights and a dramatic change in the nation’s jurisprudence. Same-sex marriages were practically unheard of in the nation until a Massachusetts court decision cleared the way for unions there just a dozen years ago.

A court decision is expected in late June.

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