Pivotal justice asks tough questions on gay marriage

David Shepardson, Melissa Nann Burke and Oralandar Brand Williams
The Detroit News

Washington — The Supreme Court grappled Tuesday with the weighty implication of creating a constitutional right for gay couples to marry, even though many commentators and some conservative justices previously suggested it was largely a foregone conclusion.

Justice Anthony Kennedy, who could cast the deciding vote in a landmark gay marriage case and has written the last three opinions expanding gay rights, raised questions about whether the High Court should reshape the definition of marriage. But he also questioned whether creating a constitutional right for gays to marry would harm traditional unions.

"... It's very difficult for the court to say 'Oh well, we know better,' " Kennedy told Mary Bonauto, a lawyer representing same-sex couples.

Justices noted that until 2001, no country or U.S. state agreed to legalize same-sex marriage and that public acceptance of same-sex marriages during the past 10 years has moved very fast. Gay marriage is legal in 36 states and 17 countries, and widely favored by Americans in opinion polls.

In February, the Supreme Court declined to block gay marriages from taking place in Alabama, which prompted an angry dissent from Justice Clarence Thomas, who suggested the court was forecasting its intentions. "This acquiescence may well be seen as a signal of the Court's intended resolution of that question," Thomas wrote.

Kennedy's questions suggested it may be a tougher decision than many assumed, said Adam Winkler, a UCLA constitutional law professor.

"Many have expected him to voice strong support for a gay marriage right. Today, he voiced more skepticism than many people would have expected," Winkler said. "But it seems clear the High Court is struggling with it more than might be expected. Rather than focus on marriage in the last millennia, Justice Kennedy should be more concerned with his legacy in the next millennia."

Kennedy said for "millennia plus time," the definition of marriage has been between a man and a woman. Several justices expressed concern about judges, rather than states, deciding on a sweeping societal change.

"Ten years — I don't even know how to count the decimals — when we talk about millennia," Kennedy said. "This definition has been with us for millennia."

A conservative lawyer agreed.

"The justices seemed to really be struggling with the issue," said Jim Campbell, legal counsel for the nonprofit Alliance for Freedom, who sat in on the arguments. "One thing that stood out to me was what Chief Justice Roberts said — that redefining marriage through the courts ends the debate and closes minds."

Mich. attorneys weigh in

The decision could affect millions of gay couples and children in families in the 14 states — including Michigan — where same-sex marriage is not legal. The Justice Department said a failure by the court to legalize gay marriage nationwide would lead to second-class status for gay families in parts of the country. But conservative justices warned that the decision could impinge on the freedom of religious schools and churches to practice their faith.

The 21/2 hours of oral arguments suggested the justices — even liberal members — were aware of the implications.

"You want nine people outside the ballot box to require states that don't want to do it to change what you've heard is change marriage to include gay people," Justice Stephen Breyer told Bonauto.

Bonauto, who represented Hazel Park nurses April DeBoer and Jayne Rowse as well as other gay couples, said the court wasn't doing so.

"I don't think this is a question of the court knowing better," she said, arguing the role of gays in America has been at issue for a century and has involved gays gradually winning more rights. "It's not about the court versus the states. It's about the individual making the choice to marry and whom to marry, or the government."

History remembers chief justices more than associate justices, Winkler said, and Chief Justice John Roberts "seemed to be grasping to understand this case in a way that may lead to a different result." He asked Michigan attorney John Bursch: Why isn't it a straightforward case of sex discrimination?

"If it is sex discrimination, it triggers a heightened scrutiny," and that could lead to the gay marital ban being struck down, Winkler said.

University of California Berkeley law professor Jesse Choper said he thinks Kennedy is likely to provide the fifth vote for gay marriage and contends the big question is Roberts when the justices meet Friday to decide the case. The result won't be announced until late June.

"There is a decent possibility that if five votes are cast in conference, that Roberts may well do as he did in the past and join the majority in order to make a sixth vote so it doesn't look quite as partisan," Choper said.

Roberts is eager to show the court is not partisan, he said, explaining why the chief justice unexpectedly provided a key vote to uphold President Barack Obama's health care law.

The other advantage is that if Roberts votes with the majority, he gets to decide who writes the opinion and could assign it to himself, Choper said.

Impact on traditional marriage

The Supreme Court on Tuesday heard a series of cases including a challenge to Michigan's voter-approved prohibition on same-sex marriage as well as another challenge to Tennessee brought by a same-sex couple who were legally married in another state and asking whether the state had to recognize the marriage.

Tennessee acknowledged that the last time it refused to recognize a marriage performed in another state was in 1970, when a stepfather had married a stepdaughter.

Michigan's Bursch came under tough questioning as he argued that requiring same-sex marriage would harm traditional marriages. He said the state's interest was in advancing marriage to ensure that biological parents remain focused on rearing their children.

"This case isn't about how to define marriage," he said. "It's about who gets to decide that question — is it the people acting through the democratic process or is it the federal courts?"

Justices Stephen Breyer and Sonia Sotomayor said marriage was a fundamental right and a state would need a truly compelling reason to deny it to a class of people. Justice Elena Kagan pressed Bursch to explain how gay marriages would hurt traditional marriages. "It's hard to see how permitting same-sex marriages discourages people from being bonded with their biological children," she said.

By contrast, Justice Samuel Alito suggested siblings who had lived together as roommates or two men and two women could seek to marry as a group if the Supreme Court legalized gay marriage.

Kennedy also challenged Bursch to explain how granting gay couples a right to marry would harm traditional marriages. Bursch argued that removing child-rearing as the central rationale for marriage would weaken parents' commitment to staying married for their children's sake if their own ties were frayed.

Alito suggested basing marriage on lasting bonds and emotional commitment — instead of providing stable homes for children — might open the right to marry to siblings who live together or close friends who are not romantically or sexually involved.

Lessons in history

The Obama administration told the High Court it needs to act to make gay marriage legal.

Solicitor General Donald Verrelli told the court that "excluding gay and lesbian couples from marriage demeans the dignity of the couples. It demeans their children."

He also argued upholding gay marriage bans would repeat the country's error with racial discrimination and lead to a "house divided that we had" with racial segregation.

Roberts said same-sex couples seeking to marry are not seeking to join the institution of marriage, but to reshape it.

"You're seeking to change what the institution is," Roberts said.

But the chief justice also questioned the states' argument. If a man can marry a woman, but a woman can't marry a woman, "Why isn't that … sexual discrimination?" he asked.

He noted how quickly Americans have moved to support gay marriage, but noted the impact of a court ruling declaring same-sex marriage legal.

"If you prevail here," he told lawyers for the couples suing, "there will be no more debate. I mean, closing of debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts."

Justice Antonin Scalia agreed, expressing concern about the court imposing a requirement on the states that "is unpalatable to many for religious reasons."

Hearing interrupted

The session was interrupted after about 30 minutes by a protester, loudly condemning homosexuality. He was forcibly removed by a half-dozen court security officers.

"That was rather refreshing, actually," Scalia said after the demonstrator was removed. The man could be heard yelling for several minutes after exiting the courtroom.

"People like that are dangerous," said Robert Sedler, a Wayne State University law professor who is one of the attorneys for DeBoer and Rowse.

Breyer asked if the nation needs more time to "wait and see" whether gay marriage is harmful to society. Bonauto responded that wait-and-see has never been considered a justification for discrimination under the Constitution.

Questions about biology

Bursch said Michigan is questioning who is best-suited to define the institution of marriage. He emphasized the state's interest in marriage has to do with biology and procreation — not in the emotional or "love" aspect of the institution.

Severing the link between marriage and procreation would reduce the number of heterosexual couples who marry and increase the number of children born out of wedlock, Bursch said.

When a justice asked why this wasn't a simple question of sexual discrimination, he replied: "This court has said it's OK to discriminate when it has to do with biology."

Kagan asked Bursch whether it would be constitutional for a state to deny marriage licenses to any couples who say they don't want or intend to have children.

Bursch noted that plenty of people get married not intending to have children and do but he said it would be an unconstitutional invasion of privacy to ask that question of couples.

Kagan said that based on Bursch's argument for a procreation-based definition of marriage, it would be permissible for states to deny marriage licenses to couples who won't procreate.

Several justices pressed plaintiff attorney Bonauto on how she accounts for the fact that no nation or culture recognized gay marriage until 2001. Bonauto said it took some time for nations to see the "common humanity" of it all.

Alito asked Bonauto if she believed the primary purpose of Michigan's ban on gay nuptials was to "demean" gay people.

Bonauto said, generally, yes, but even if there's not a purpose to demean, the laws in question "encompass moral judgments about gay people."

Alito also asked Bonauto whether, if the justices rule in favor of gay marriage, polygamous marriages could also be recognized by the states. Bonauto said it would raise questions about mutual consent, coercion and disruption to children in the family.

"What we're talking about here is two consenting adults who make that commitment," she said.

Clergy involvement

Scalia wondered whether clergy licensed by the state to officiate weddings could legally decline to marry same-sex couples.

Bonauto said no member of the clergy can be forced to officiate any wedding under the protection of the First Amendment guarantee of freedom of religion. Scalia indicated he wasn't convinced.

"I don't see an answer to that. I really don't," he said.

Only 11 states have granted marriage rights to same-sex couples through the ballot or the legislature. Court rulings are responsible for all the others.

Attorneys for both sides said they thought the arguments went well.

He was "very encouraged" by the questions from Kennedy, Breyer and Roberts about why the court should "take this from society and decide it once and for all," Bursch said.

"The one thing I was surprised about was how much Justice Kennedy and Justice Breyer in particular really pushed the point that the courts aren't the ones that should be resolving these important questions," Bursch said. "Obviously, they're the two swing votes we're looking at, so to see them echoing our democratic arguments was very rewarding."

DeBoer and Rowse attorney Sedler said there's no sense trying to predict how the justices will rule; the court often uses oral arguments as more of a "back and forth" among themselves. But he was "cautiously optimistic."

So was DeBoer. "Maybe in a couple of months we'll be able to get married," she said afterward.

Following the hearing and during a speech to supporters, an attorney for the Hazel Park couple, Dana Nessel, popped the question of marriage to her girlfriend, Alanna Maguire. They kissed to the applause of DeBoer's and Rowse's supporters.