Obergefell v. Hodges – Part 1


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 first half of the oral argument (Question 1) has been posted on the Court’s web site. Audio.

UPDATE: Transcript now available.

I will post the audio for the second half of the oral argument (Question 2) when it becomes available.

Screenshot from 2015-04-28 09:41:41

The New York Times’ Supreme Court reporter Adam Liptak has a first take in Justices Appear Deeply Divided Over Right to Gay Marriage:

SSmarriage-300x185The Supreme Court on Tuesday seemed deeply divided about one of the great civil rights issues of the age: whether the Constitution guarantees same-sex couples the right to marry.

The justices appeared to clash over not only what is the right answer but also over how to reach it. The questioning illuminated their conflicting views on history, tradition, biology, constitutional interpretation, the democratic process and the role of the courts in prodding social change.

Justice Anthony M. Kennedy said he was concerned about changing a conception of marriage that has persisted for millennia. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John C. Roberts Jr. worried about shutting down a fast-moving societal debate.

In the initial questioning, which lasted about 90 minutes, Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same-sex marriage might require some members of the clergy to perform the ceremonies, even if they violate their religious teaching.

Per usual, Nito is full-o’-crap. The First Amendment religious liberties clause prevents this from ever occurring. This is Nito fear-mongering for the right-wing hate radio shows he frequents.

Justice Stephen G. Breyer described marriage as a fundamental liberty. And Justices Ruth Bader Ginsburg and Elena Kagan said that allowing same-sex marriage would do no harm to the marriages of opposite-sex couples.

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At the start of Tuesday’s arguments, Chief Justice Roberts said that he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman. “If you succeed, that definition will not be operable,” the Chief Justice said. “You are not seeking to join the institution. You are seeking to change the institution.”

Justice Kennedy, who many consider the likely swing vote on the case, weighed in with skepticism as the advocates for gay marriage made their case. He said the definition of marriage “has been with us for millennia.”

“It’s very difficult for the court to say, ‘Oh, we know better,’ ” he said.

Justice Scalia echoed Justice Kennedy’s concerns about the weight of history and the relatively recentness of gay marriage. About halfway through Mary L. Bonauto’s argument for the recognition of a right to same-sex marriage, Justice Scalia asked whether she knew of “any society prior to the Netherlands in 2001 that permitted same sex marriages?” He repeated Justice Kennedy’s observation that the definition of marriage as between a man and a woman has been in effect “for millennia.”

Later, when the lawyer for the opponents of gay marriage began arguing, Justice Stephen G. Breyer forcefully questioned why states should be able to exclude gay people from marriage. “Marriage is open to vast numbers of people,” he said, adding that same-sex couples “have no possibility to participate in that fundamental liberty. And so we ask why.”
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Several of the more liberal justices also pressed the opponents of gay marriage to say how, exactly, extending marriage to same-sex couples could harm heterosexual couples who want to marry.

Justice Ginsburg was particularly blunt on that point. “You are not taking away anything from heterosexual couples” if the state allows gay couples to marry,” she said.

Justice Sonia Sotomayor seemed equally unpersuaded, asking how denying marriage to same-sex couples strengthens marriage for heterosexual couples.

John J. Bursch, the lawyer for the opponents of same-sex marriage, argued in response that if people no longer believe that “marriage and creating children have anything to do with each other,” there will be more children born out of wedlock, which he said is a problem for society.

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In Tuesday’s cases, the court scheduled two separate arguments. The first, which is 90 minutes long, concerns whether the Constitution requires states to issue marriage licenses to “two people of the same sex.” The second, which will last an hour, is about whether states must recognize same-sex marriages performed elsewhere.

The court consolidated the four cases before it, not all of which had addressed both questions. It will almost certainly issue a single decision covering all four, and it will be known by the name of the one from Ohio, Obergefell v. Hodges, No.14-556.