All Eyes on Kennedy, Roberts As High Court Debates Gay Marriage

The gold standard of excellence for more than 80 years, Bloomberg BNA’s The United States Law Week® is the most authoritative way to keep up with important cases and other legal developments...

By Kimberly Robinson

April 28 — As rowdy crowds chanted and danced outside of the U.S. Supreme Court April 28, all eyes inside the courtroom were on Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr. during oral argument over the divisive issue of same-sex marriage.

During the two-and-a-half-hour session, the court not only considered whether states have to allow same-sex couples to get married, but also whether states have to recognize same-sex marriages validly entered into in other states.

Kennedy was equally skeptical of both the parties' positions on the first issue—expressing concern for children being raised by same-sex couples if their parents weren't allowed to get married, while also questioning the logic of forcing states to change a millennia-old definition of marriage.

Roberts, on the other hand, appeared to be a solid vote for same-sex marriage opponents on the question of whether states can ban same-sex marriages, but may split the baby by requiring states to recognize other states' marriages.

According to Justice Antonin Scalia, there are 11 states that have voted—through their legislatures or through popular vote—to allow same-sex marriage.

In total, same-sex marriage is permitted in more than triple that number of states, many as a result of federal and state decisions striking same-sex marriage bans.

‘Millennia, Plus Time.'

One sticking point for Kennedy on the validity of the outright bans was the historical roots of the states' definition of marriage as exclusively between one man and one woman.

The “word that keeps coming back to me in this case is millennia, plus time,” Kennedy said. “This definition has been with us for millennia. And it's very difficult for the court to say, oh, well, we know better.”

But we already have “changed our idea about marriage,” Justice Ruth Bader Ginsburg countered. “Marriage today is not what it was under the common law tradition, under the civil law tradition.”

“Marriage was a relationship of a dominant male to a subordinate female,” she said. “That ended as a result of this court's decision in 1982 when Louisiana's Head and Master Rule was struck down. And no state was allowed to have such a marriage anymore.”

Roberts, however, thought that wasn't a fair comparison. “Coverture was not a universal aspect of marriage around the world,” he noted.

In contrast, Justice Samuel A. Alito Jr. noted that up until 2001, when the Netherlands permitted same-sex marriage, all societies defined marriage as between a man and a woman.

So “you're not seeking to join the institution,” Roberts told Mary Bonauto, the attorney arguing against the same-sex marriage bans, “you're seeking to change what the institution is.”

Closing the Debate

Bonauto, of the Gay & Lesbian Advocates & Defenders, Boston, said that the effect of these laws is to demean gay people. These bans “encompass moral judgments and stereotypes about gay people,” she said.

“But there have been cultures that did not frown on homosexuality,” that still didn't allow same-sex marriage, Alito said. “Ancient Greece is an example.”

“So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?” he asked Bonauto.

But Greece didn't, and other legal systems around the world don't, have “explicit constitutional guarantees for all persons of liberty and equality, and that immediately sets the United States off from so many other countries,” Bonauto said.

When the Supreme Court struck down Virginia's prohibition on interracial marriage in Loving v. Virginia, 388 U.S. 1 (U.S. 1967), it was based on those constitutional guarantees, Bonauto said. Moreover, “80 percent of the American public was with Virginia on that.”

But Roberts noted that the public sentiment regarding same-sex marriage now isn't the same as public sentiment regarding interracial marriage at the time of Loving.

“The situation in Maine, I think is characteristic,” Roberts said. By voter initiative in 2009, “they banned gay marriage. In 2012, they enacted” a law allowing same-sex marriage.

That “sort of quick change has been a characteristic of this debate, but if you prevail here, there will be no more debate,” he told Bonauto.

That has consequences, Roberts said. “I mean, closing of debate can close minds.” 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.”

Court's Emphatic Duty

Echoing Roberts, Scalia said he was “concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons.”

Shouldn't we leave it up to the states' citizens to decide? Scalia asked.

But Solicitor General Donald B. Verrilli, Jr., arguing against the bans on behalf of the federal government, said that it was “untenable” to suggest that same-sex couples be “required to wait until the majority decides that it is ready to treat gays and lesbian people as equals.”

Instead, “what these gay and lesbian couples are doing is laying claim to the promise of the 14th Amendment now,” Verrilli said. “And it is emphatically the duty of this court” to decide what that amendment requires.

‘Delinking' Marriage, Children

Verrilli also attacked the states' justification for enacting the bans: to link marriage to procreation to encourage children to be raised by their biological parents.

The “states' argument really is quite ironic in this respect,” he said.

There are “hundreds of thousands of children raised in same-sex households now,” Verrilli noted. The states' argument leads you to the conclusion “that those hundreds of thousands of children don't get the stabilizing structure and the many benefits of marriage.”

Arguing for the states, however, Michigan Special Assistant Attorney John J. Bursch, Lansing, Mich., said that “when you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences.”

“If you de-link marriage from creating children, you would expect to have more children created outside the bonds of marriage,” Bursch said. He added that that is exactly what is happening.

The “out-of-wedlock birth rate in this country has gone from 10 percent to 40 percent from 1970 to today, Bursch said. “And I think everybody would agree that that's not a good result for children.”

But “under your view, it would be very difficult for same-sex couples to adopt some of these children,” Kennedy said. So “I think the argument cuts quite against you.”

Noting that many of the petitioners challenging the bans here have adopted foster children, Bonauto added that “Michigan has placed intensely vulnerable children with these petitioners who have nurtured them to a healthy childhood.”

Michigan doesn't deny them marriage because they “didn't conceive those children together,” but “because it does not approve of the adult relationship,” Bonauto said.

Policing the Limits

Bursch conceded that it was an emotional issue, but said that “reasonable people can disagree. This court has never assumed that people have acted out of animus when they're voting in the democratic process.”

He added that the court would be taking an important question out of the hands of the voters, and “that's not the way that our democratic process is supposed to work.”

There “are long-term harms to our country and to that fundamental liberty interest to govern ourselves” if the court takes that question away, Bursch said.

“Mr. Bursch, we don't live in a pure democracy; we live in a constitutional democracy,” Justice Elena Kagan said. “And the Constitution imposes limits on what people can do and this is one of those cases—we see them every day—where we have to decide what those limits are.”

Unusual Situation

The relationship between the courts and the states wasn't the only one under the microscope; so, too, was the relationship among the states themselves.

In considering whether states have to recognize other states' same-sex marriages, the questions tossed from the bench were much more subdued, and the attorneys themselves appeared to want just to reargue the first question regarding the outright bans.

As Alito put it, the question put the attorneys in “ a very unusual situation.”

“First of all, we have to assume that this first question has been decided against the” same-sex marriage proponents, Alito said, “or we wouldn't get to the second question.”

“So we have to assume that we would hold that a state has a sufficient reason for limiting marriage to opposite-sex couples,” but “not a strong enough reason” for the state “not to recognize a marriage performed out of state,” Alito explained. “I suppose that's possible.”

Ropes & Gray LLP's Douglas Hallward-Driemeier, Washington, who also argued on behalf of the same-sex marriage proponents, attempted to show that there was in fact a difference between refusing to allow a marriage in the first place and refusing to recognize a marriage that has already happened.

“A state should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so,” Hallward-Driemeier argued.

Hallward-Driemeier said that the states didn't have a valid reason here, suggesting that these anti-recognition laws were passed only out of animus toward homosexuals.

These laws are “out of character, unprecedented,” Hallward-Driemeier said.

He noted that in other contexts states typically follow the “celebration rule,” recognizing marriages validly entered into in other states, even if those marriages wouldn't be permitted in their state.

Justice Sonia Sotomayor added that no state had ever “categorically passed a law declaring that a particular kind of marriage” wouldn't be recognized.

Roberts appeared to agree. Outside “of the present controversy, when was the last time Tennessee declined to recognize a marriage from out of state?” he asked.

Tennessee Associate Solicitor General Joseph F. Whalen, Nashville, Tenn., said that it was in 1970, when the state refused to recognize a marriage between a step-father and his step-daughter.

But, he said, states “with a traditional definition of marriage have done nothing here but stand pat.” They “have maintained the status quo.”

“And yet other states have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition.” To suggest “that other states that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the states' ability to self-govern,” Whalen said.

“In other words,” Roberts said, “one state would basically set the policy for the entire nation.”

To contact the reporter on this story: Kimberly Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

The full text of the transcript on Question 1 is at

The full text of the transcript on Question 2 is at