This
entry describes the arguments that were made during the first part of oral
argument in Obergefell v. Hodges, the
same-sex marriage case that was argued before the Supreme Court on Tuesday,
April 28, 2015.
The
issue before the Court in this part of the oral argument concerned the
constitutionality of the laws of four states that limit marriage to one man and
one woman, thus prohibiting same sex couples from marrying in those states. There
was a separate oral argument on the issue of whether those states are obligated
to recognize same-sex marriages that were entered into in other states.
The
Sixth Circuit Court of Appeals ruled in favor of the states and upheld the
state laws banning same sex marriage. Same sex couples appealed the decision of
the Circuit Court to the Supreme Court of the United States, and those couples
were represented in this proceeding by Attorney Mary L. Bonauto. The states
were represented by Attorney John J. Bursch.
Ms.
Bonauto made one simple argument on behalf of same-sex couples. She asserted
that same-sex couples have a fundamental right to marry and that in the
exercise of this right they are entitled to be treated the same as all other
people. Let’s designate this as argument number:
1. The state laws that deny same-sex couples
violate violate their constitutional rights to liberty and equality.
In
contrast, the arguments against same-sex marriage were many and diverse. I
count nine separate points that were discussed:
2. There is no historical support for
same-sex marriage; same-sex marriage conflicts with both cultural and religious
traditions. (Surprisingly, Attorney Bursch eschewed this argument!);
3. Voters have a constitutional right to
reject same-sex marriage;
4. This matter must be left to the
democratic process, not decided by the courts;
5. Society should “wait and see” what the
consequences of same-sex marriage are;
6. The recognition of same-sex marriage
will harm the children of opposite-sex couples;
7. Laws denying the right of same-sex
couples to marry was not intended to demean or disparage gay and lesbian
couples;
8. Laws denying people the right to marry
someone of the same sex do not constitute gender discrimination;
9. Lawrence v. Texas does not stand
for the proposition that same-sex couples have a constitutional right to marry;
10. If same-sex marriage is recognized as a
constitutional right, it will violate the rights of individuals and
organizations who are conscientiously opposed to same-sex marriage;
11. If same-sex marriage is recognized as
a constitutional right then polygamous and incestuous relationships will also
be entitled to formal recognition.
Presented
below is a detailed summary of each of these arguments.
____________________________
Argument 1: Gay
and Lesbian Couples Are Entitled to Liberty and Equality
Attorney
Bonauto commenced with this straightforward policy argument. Same sex couples are
similarly situated to opposite sex couples. They marry for the same reasons as
opposite sex couples – they love each other, they want to form a family
together, and for many of them – as with many if not most opposite sex couples
– they want to raise children together. Therefore they should be treated the
same under the law:
MS.
BONAUTO: Mr. Chief Justice, and may it please the Court:
The
intimate and committed relationships of same-sex couples, just like those of
heterosexual couples, provide mutual support and are the foundation of family
life in our society. If a legal commitment, responsibility and protection that
is marriage is off limits to gay people as a class, the stain of unworthiness
that follows on individuals and families contravenes the basic constitutional
commitment to equal dignity.
As
simple and straightforward as the argument on behalf of same-sex couples was,
the arguments assembled on behalf of the states were complex and convoluted.
Argument 2:
Tradition and Religion
Until
now, the principal argument that had been advanced against same sex marriage
was that it was inconsistent with cultural traditions and with religious
belief. Chief Justice John Roberts raised this point almost immediately with
Attorney Bonauto, asking whether the traditional definition of marriage would
remain the same if same-sex marriage were recognized. Bonauto responded clearly
and directly:
CHIEF
JUSTICE ROBERTS: Well, you say join in the institution. The argument on the
other side is that they’re seeking to redefine the institution. Every
definition that I looked up, prior to about a dozen years ago, defined marriage
as unity between a man and a woman as husband and wife. Obviously, if you
succeed, that core definition will no longer be operable.
MS.
BONAUTO: I hope not, Your Honor, because of what we’re really talking about
here is a class of people who are, by State laws, excluded from being able to
participate in this institution.
Justice
Anthony Kennedy continued this theme, noting that:
JUSTICE
KENNEDY: … This definition has been with us for millennia.
Surprisingly,
in defending the constitutionality of these laws prohibiting same sex marriage,
the respondents decided not to rely upon tradition. Attorney John J. Bursch
represented the states whose laws are being challenged in this case. At the
commencement of his argument Justice Steven Breyer flatly asked Bursch whether
the states had any reasons to justify these laws other than tradition and
religion – and Bursch’s answer was astonishing:
JUSTICE
BREYER: I don’t know that that’s -- I mean, leaving that to the side, I thought
that I heard the answer to the question being given in respect to tradition of
2000 years, and to the democratic ballot box and so forth was quite simple.
What I heard was, one, marriage is fundamental. I mean, certainly that’s true
for 10,000 years. And marriage, as the States administer it, is open to vast
numbers of people who both have children, adopt children, don’t have children,
all over the place.
But
there is one group of people whom they won’t open marriage to. So they have no
possibility to participate in that fundamental liberty. That is people of the
same sex who wish to marry. And so we ask, why? And the answer we get is, well,
people have always done it. You know, you could have answered that one the same
way we talk about racial segregation.
Or
two, because certain religious groups do think it’s a sin, and I believe they
sincerely think it. There’s no question about their sincerity, but is a purely
religious reason on the part of some people sufficient?
And
then when I look for reasons three, four and five, I don’t find them. What are
they? So -- so therefore, I’m asking -- there I put a long question, but it
gives you an opening to say what all of those reasons are.
MR.
BURSCH: Justice Breyer, those answers one and two are not our answers.
Justice
Ginsburg asked Attorney Bursch whether it would be constitutional to bring back
the “traditional” understanding of marriage that a married woman was legally
subordinate to her husband. Bursch admitted that it would be unconstitutional
to go back to that traditional understanding because the state doesn’t have a
legitimate interest in making anyone subservient to someone else:
JUSTICE
GINSBURG: We have changed our idea about marriage is the point that I made
earlier.
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.
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 -- such a
marriage anymore. Would that be a choice that a State should be allowed to
have?
MR.
BURSCH: No.
JUSTICE
GINSBURG: To cling to marriage the way it once was?
MR.
BURSCH: No. Absolutely not, because there the State didn’t have a legitimate
interest in making anyone subservient to anyone else.
Instead,
Attorney Bursch asserted two other reasons why these laws banning same sex
marriage are constitutional, one based on who should decide this issue and the
second on the ground that the law was intended to protect the children of
opposite sex couples.
Argument 3:
Individuals as Voters Have a Constitutional Right to Decide This Matter
The
first argument Attorney Bursch made is that individuals as voters have a
constitutional right to exclude gay and lesbian couples from the institution of
marriage – that they have a constitutional right to decide the meaning of
marriage:
MR.
BURSCH: … This case isn’t about how to define marriage. It’s about who gets to
decide that question. Is it the people acting through the democratic process,
or is it the Federal courts? And we’re asking you to affirm every individual’s
fundamental liberty interest in deciding the meaning of marriage.
In
support of the proposition that individuals have a constitutional right to
place limitations on the right to marry, Attorney Bursch made a surprising
choice. After Justice Breyer asserted that the right to marry is a fundamental
right, Attorney Bursch replied that the fundamental right is the right of the
people to define and place limitations on marrage, and he cited the case of United States v. Windsor as standing for
that concept.
MR.
BURSCH: … And in Windsor, this Court
said that the limitation of marriage to opposite-sex couples has always been
thought to be fundamental.
In
Windsor the Supreme Court struck down
the federal Defense of Marriage Act on the ground that it violated the liberty
and equality rights of same-sex couples under the Fifth Amendment. Justice
Breyer was perplexed by this argument, and he returned to it near the close of
Attorney Bursch’s appearance asking for clarification. He seemed astounded that
the respondents would cite Windsor for the proposition that individuals opposed
to same sex marriage have a constitutional right to limit marriage to one man
and one woman, asking for a page cite and stating that if Windsor had settled
the issue then the present litigation was unnecessary:
JUSTICE
BREYER: Should I read anything other than -- I’ll certainly go back and read
Windsor again and I’ll certainly go and read Glucksberg again. I do recall the
cases, at least generally, and I don’t believe there’s anything in those cases
that says the basic liberty or right to be married is a right that extends only
to opposite-sex couples. Those -- those weren’t really issues in the case as
they are here, so I’m surprised if this Court actually wrote that, but -- but
if it did write that and you can immediately call that page to mind, I’ll
doubly look at it. And I just doubt it’s there, but I’ll look at it.
MR.
BURSCH: I apologize for not having the page cite, but --
JUSTICE
BREYER: No, no. That’s quite all right. I’ll read the whole opinion.
MR.
BURSCH: Yeah. You will find in Windsor that the Court majority said it’s the
limitation of marriage to opposite-sex couples that has always been thought
fundamental.
JUSTICE
BREYER: It’s the limitation, fine. Okay.
MR.
BURSCH: Yes. You know, so what -- what we’re talking about here is having to
--
JUSTICE
SCALIA: Well, that was then and this is now.
JUSTICE
BREYER: How could the limitation -- the right has -- the fundamental right has
to be a right to marry and you said it’s the limitation --
MR.
BURSCH: This Court acknowledged --
JUSTICE
SCALIA: Did Justice Breyer join that opinion that said that?
MR.
BURSCH: I -- I believe he did.
JUSTICE
SCALIA: My Lord.
JUSTICE
BREYER: Well, I -- sometimes, you know, context matters. I’ll go in.
MR.
BURSCH: If I could briefly continue.
CHIEF
JUSTICE ROBERTS: Sure.
JUSTICE
BREYER: I’m surprised we have this case in front of us if that -- I mean, if
it’s been so clearly decided, but --
CHIEF
JUSTICE ROBERTS: Do you want wrap up, counsel?
MR.
BURSCH: I -- I do want to wrap up.
The
difficulty with Attorney Bursch’s argument is that when individuals act as
voters they are engaging in state action –
by adopting a law they are not acting as individuals but rather they are
invoking the power of the state to affect the rights of other individuals.
Argument 4:
Leaving the Matter to the Democratic Process
This
line of argument was closely related to two others that had figured prominently
in the reasoning of the Sixth Circuit upholding the laws prohibiting same sex
marriage: the “democratic process” argument and the “wait and see” approach.
In
the Sixth Circuit Judge Jeffrey Sutton had placed great emphasis on the point
that it is better to resolve these matters through the democratic process than
through the courts. Justice Antonin Scalia expressed agreement with this
position:
JUSTICE
SCALIA: Well, the -- the issue, of course, is -- is -- is not whether there
should be same-sex marriage, but who should decide the point.
Chief
Justice Roberts explained why it might be preferable to leave this subject to
the political process. He remarked that people’s attitudes about same sex
marriage had been changing very rapidly, but that
CHIEF
JUSTICE ROBERTS: … if you prevail here, there will be no more debate. I mean,
closing the debate can close minds, and -- and it will have a consequence on
how this new institution is -- 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
-- by the courts.
The
principal response to the “democratic process” argument was offered by Attorney
Bonauto, who in closing stated that the issue was not whether the legislature
or the courts should decide whether same sex couples would marry, but whether
the government or individuals would make that choice:
MS.
BONAUTO: … And I will say before I sit down, if I may reserve my time, Your
Honor, that in terms of the question of who decides, it’s not about the Court
versus the States. It’s about the individual making the choice to marry and with
whom to marry, or the government.
Argument 5: The
“Wait and See Approach”
The
Sixth Circuit had also placed great reliance on the point that the states have
the right to “wait and see” what the consequences of same sex marriage would be
before allowing gay and lesbian couples to marry. Attorney Bonauto had several
responses to this argument. She noted that the Supreme Court first addressed
this issue in Baker v. Nelson more than 40 years ago and that the country had
been discussing this issue for over 20 years ever since it arose in the State
of Hawaii in the early 1990s. She also stated:
MS.
BONAUTO: … Wait and see by itself has never been considered a legitimate
justification, a freestanding justification under the Fourteenth Amendment. And
what we’re talking about here with waiting and seeing is we’re talking about --
we’re talking about the Petitioners being denied marriage. And we’re talking
about a second class status being tried as a matter of the Constitution --
She
added:
MS.
BONAUTO: … In terms of waiting, I do think the effect of waiting is not
neutral, it does consign same-sex couples to this outlier status, and there
will be profound consequences that follow from that.
Chief
Justice Roberts agreed with Bonauto that the consequences of waiting were not
neutral, but implied that same sex couples might not have to wait very long for
the democratic process to work:
CHIEF
JUSTICE ROBERTS: You’re -- you’re quite right that the consequences of waiting
are not neutral. On the other hand, one of the things that’s truly
extraordinary about this whole issue is how quickly has been the acceptance of
your position across broad elements of society. I don’t know what the latest
opinion polls show.
The
situation in Maine, I think, is -- is characteristic. In 2009, I guess it was
by referendum or whatever, they banned gay marriage. In 2012, they enacted it
as law. I mean, that sort of quick change has been a characteristic of this
debate, but if you prevail here, there will be no more debate.
Solicitor
General Donald Verrilli, Jr., who like Bonauto also argued against the
constitutionality of the state laws prohibiting same sex marriage, explained
that “wait and see” was not acceptable because it would mean the denial of
people’s constitutional rights – perhaps for their entire lives:
GENERAL
VERRILLI: … I think it’s important to understand that if this Court concludes
that this issue should be left to the political process, what the Court will be
saying is that the demeaning, second-class status that gay and lesbian couples
now inhabit in -- in States that do not provide for marriage is consistent with
the equal protection of the laws. That is not a wait-and-see. That is a
validation.
And
second, to the extent that the thought is that this can be left to the
political process because this issue will take care of itself over time,
because attitudes are changing, what I respectfully submit to the Court is that
although no one can see the future perfectly, of course, that it seems much
more likely to me that the outcome that we’re going to end up with is something
that will approximate the nation as a house divided that we had with de jure
racial segregation. You may have many States, perhaps most States, in which gay
couples can live with equal dignity and status, but you will have a minority of
States in which gay couples will be relegated to demeaning, second-class
status, and I don’t know why we would want to repeat that history.
And
third --
CHIEF
JUSTICE ROBERTS: But, General, I -- I’m sorry. Go ahead.
GENERAL
VERRILLI: And third, I want to expand on what Ms. Bonauto said, that -- that --
and I think you, Mr. Chief Justice, you did recognize this, that the decision
to leave this to the political process is going to impose enormous costs that
this Court thought were costs of constitutional stature in Windsor. Thousands
and thousands of people are going to live out their lives and go to their
deaths without their States ever recognizing the equal dignity of their
relationships.
Argument 6:
Protecting the Children of Opposite Sex Couples
After
the arguments that the people have a constitutional right to wait and see and
to decide this question through the democratic process, the second principal
line of argument that Attorney Bursch advanced in support of laws opposing same
sex marriage was a policy argument. He contended that these laws were adopted
to protect the children of opposite sex couples. His line of reasoning was as
follows. If same sex couples are admitted to the institution of marriage, it
will tend to make people think that marriage is simply for the personal
gratification of the adults and not for procreation and childrearing. This
cultural shift will reduce the devotion of opposite sex couples to their
children, and as a consequence opposite sex couples will be more likely to
divorce when they tire of their spouses. Here is this argument, in Attorney
Bursch’s own words:
ATTORNEY
BURSCH: … And when you change the definition of marriage to delink the idea
that we’re binding children with their biolaogical mom and dad, that has
consequences.
And
again:
ATTORNEY
BURSCH: … But the reason why there’s -- there’s harm if you change the
definition because, in people’s minds, if marriage and creating children don’t
have anything to do with each other, then what do you expect? You expect more
children outside of marriage.
The
“delinking” argument met with skepticism from several of the justices.
Justice
Kennedy asked whether same-sex couples don’t enter into marriage with the same
purposes as opposite sex couples:
JUSTICE
KENNEDY: But that -- that assumes that same-sex couples could not have the more
noble purpose, and that’s the whole point. Same-sex couples say, of course, we
understand the nobility and the sacredness of the marriage. We know we can’t
procreate, but we want the other attributes of it in order to show that we,
too, have a dignity that can be fulfilled.
Justice
Breyer noted that a high percentage of same sex couples who get married have
children:
JUSTICE
BREYER: I’m sure that’s true. But I mean, the -- the fact is that -- that X
percent, a very high percent of opposite-sex people don’t have children and
everybody knows they can’t, and a very -- and a high -- certain percentage, I’m
sure probably pretty of high of those who get married, of same-sex people who
get married do have children.
Justice
Sotomayor asked whether it was proper to uphold a law that is based upon a
“feeling which doesn’t make any logical sense”:
JUSTICE
SOTOMAYOR: But the problem is that even under a rational-basis standard, do we
accept a feeling? I mean, why is -- why as -- and I think Justice Kagan put the
argument quite clearly, with something as fundamental as marriage, why would
that feeling, which doesn’t make any logical sense, control our decision-making?
Justice
Kennedy noted that it was a just a “wrong premise” that same sex couples don’t
bond with their children:
JUSTICE
KENNEDY: And -- and it goes back to the basic point where you began where you
had some premise that only opposite-sex couples can have a bonding with the
child. That’s -- that was very interesting, but it’s just a wrong premise.
Justice
Kagan asked how permitting same-sex marriage discourages people from being
bonded with their biological children:
JUSTICE
KAGAN: Well, you see, this is what I think is -- is difficult for some people
with your argument, is that it’s hard to see how permitting same-sex marriage
discourages people from being bonded with their biological children. So if you
would explain that to me.
Justice
Breyer asked for empirical proof:
JUSTICE
BREYER: It’s the same point. What *67 directly is your response to the
fact that if we assume a basic purpose of marriage is to encourage an emotional
and rearing bond between parents and children, that allowing gay people to marry
will weaken it? After all, some non-gay couples have children, many, and some
don’t. And some gay people married have children, and some don’t. So what’s the
empirical connection? That’s what I have a problem with in your argument.
MR.
BURSCH: Justice Breyer, it’s relatively simple. If you de-link marriage from
creating children, you would expect to have more children created outside the
bonds of marriage. And a reasonable voter -- that’s government conduct; right?
If -- if -- right now, take a --
JUSTICE
BREYER: What’s the empirical part of what you just said? If you believe that
marriage is -- you -- I just heard you say it, but I didn’t follow it.
Justice
Breyer and Justice Kagan questioned Bursch about the fact that same-sex couples
often adopt unwanted children. Breyer said he was “stuck,” and Kagan found the
state’s choice to bar such couples from marrying “inexplicable”:
JUSTICE
BREYER: But I’ve never heard of a State that said, it is our State policy that
we don’t like adoption. I’ve heard of many States who say it’s very important
to treat adopted children the same way that you treat natural children. I’ve
never heard the contrary.
MR.
BURSCH: Yes, we -- we agree.
JUSTICE
BREYER: So if your argument depends upon that, I’m stuck.
MR.
BURSCH: Let me be very clear about that. We love adoption. Adopted parents are
heroic. There you are talking about children who have, for whatever reason,
death, disability, abuse, have already been separated from their biological mom
and dad, and so when we’re talking about adoption, that’s an entirely different
social issue that gets solved with different State interests. What we’re
talking about here is that world where there is no marriage --
JUSTICE
KAGAN: But, you know, they are connected, right? Because if you think about
--
MR.
BURSCH: Oh, they’re related. Sure.
JUSTICE
KAGAN: If you think about the potential -- who are the potential adoptive
parents, many of them are same-sex parents who can’t have their own children,
and truly want to experience exactly the kind of bond that you’re talking
about. So how does it make those children better off by preventing that from
happening?
MR.
BURSCH: Well, we allow someone regardless of their sexual orientation to adopt.
That’s, again, a very different --
JUSTICE
KAGAN: Yes. But you, yourself, are saying that the marriage -- the -- the
recognition of marriage helps the children, aren’t you? I mean, you’d rather
have -- the whole basis of your argument is that you want children in marital
households.
MR.
BURSCH: Correct. We -- we want it to be the glue. That’s correct.
JUSTICE
KAGAN: More -- more adopted children and more marital households, whether same
sex or other sex seems to be a good thing.
MR.
BURSCH: Well, that -- that’s a policy argument, and reasonable people can
disagree simply and compassionately.
JUSTICE
KAGAN: Well, I’m just asking based on your policy how it’s not a good thing.
I’m not trying to put words in your mouth. I’m just saying if -- if -- it just
seems to me inexplicable given what you’ve said are your policy interests.
Solicitor
General Verrilli directly addressed the question of the welfare of the children
– the hundreds of thousands of children in same sex households:
GENERAL
VERRILLI: … I think the more fundamental point, and the point I’m trying to
drive at here, is that you have hundreds of thousands of children raised in
same-sex households now. And what Respondents’ position and Respondents’
caution argument leads you to is the conclusion that those hundreds of
thousands of children don’t get the stabilizing structure and the many benefits
of marriage.
Argument 7: What
Was the Government’s Intent in Adopting These Laws?
Another
set of arguments advanced by the states focused on the government’s intent in
adopting these laws. Attorney Bursch contended that protecting the interests of
children of opposite sex couples was the sole
purpose of these laws. He denied that the laws were intended to demean same sex
couples. He denied that the laws were intended to discriminate on the basis of
gender. And he denied that the purpose of the laws was to discriminate on the
basis of sexual orientation.
Attorney
Bursch cited Washington v. Davis and Personnel Administrator v. Feeney for
the proposition that these state laws did not violate the Equal Protection
Clause because it was not the intent of the state to discriminate against
people on the basis of gender or sexual orientation:
MR.
BURSCH: It’s not meant to take away dignity.
JUSTICE
KAGAN: It must be. That’s why you’re drawing distinctions based on sexual
orientation in these laws.
MR.
BURSCH: Oh, gosh, no, because the -- the State doesn’t care about your sexual
orientation. What the State cares about is that biological reality.
JUSTICE
KAGAN: I’m not asking about -- I’m not asking about your reasons and whether
you have any or not. But whether you have any or not, you are drawing
distinctions based on sexual orientation. That’s what -- that’s what these laws
do.
MR.
BURSCH: No. A statute that facially classified based on sexual orientation
would look very different. What these statutes do is they have disparate
impact, and you would have to demonstrate them under Washington v. Davis and
Feeney that there’s some animus that motivates this.
This
argument confuses the element of “purposeful discrimination” with the concept
of “animus.” They are not the same. To state a claim under Equal Protection it
is necessary to prove that the government intentionally treated two groups
differently. It is not necessary to prove that this was done because of
“hatred” or “dislike.” To trigger Equal Protection it is sufficient if the
government draws lines that intentionally treat one group differently than
another. These state laws limiting marriage to one man and one woman obviously
treat people differently on the basis of sexual orientation. (And Chief Justice
Roberts suggested that they treat people differently on the basis of gender as
well!) If the state’s reason for that intentional discrimination is unlawful,
then the law is unconstitutional per se. If the reason for this intentional
discrimination is lawful then the standard of review depends upon whether the
group that was singled out for disparate treatment is a suspect class or
whether they are being deprived of a fundamental right.
Attorney
Bursch also denied that the state marriage laws were intended to confer
enhanced status or dignity on anybody! In this he ran directly into Justice
Kennedy:
ATTORNEY
BURSCH: … And what they are asking you to do is to take an institution, which
was never intended to be dignitary bestowing, and make it dignitary bestowing.
That’s their whole argument. And when you do that, tens of thousands of other
children who don’t meet their definition will likewise be left out and suffer
those exact same dignitary harms.
When
you’re talking about a spectrum of marriage definitions, different places to
draw the line, and potential harms on both sides, that is the quintessential
place for the democratic process to work. And there’s another harm --
JUSTICE
KENNEDY: Just in -- just in fairness to you, I don’t understand this not
dignity bestowing. I thought that was the whole purpose of marriage. It bestows
dignity on both man and woman in a traditional marriage.
MR.
BURSCH: It’s supposed to --
JUSTICE
KENNEDY: It’s dignity bestowing, and these parties say they want to have that
-- that same ennoblement.
MR.
BURSCH: Sure.
JUSTICE
KENNEDY: Or am I missing your point?
MR.
BURSCH: I think you’re missing my point. If we go back to that world where
marriage doesn’t exist and the State is trying to figure out how do we link
together these kids with their biological moms and dads when possible, the --
the glue are benefits and burdens, but not necessarily dignity.
You
know, dignity may have grown up around marriage as a cultural thing, but the
State has no interest in bestowing or taking away dignity from anyone, and
certainly it’s not the State’s intent to take dignity away from same-sex
couples or -- or from anyone based on their sexual orientation.
JUSTICE
KENNEDY: Well, I think many States would be surprised, with reference to
traditional marriages, they are not enhancing the dignity of both the parties.
I’m puzzled by that.
On
the question of animus, Justice Alito questioned Attorney Bonauto regarding
whether these state laws reflecting longstanding cultural traditions were
really intended to demean same sex couples. Bonauto gently but firmly replied
that they reflected moral judgments against and stereotypes of gays and
lesbians, and that “times can blind.”
JUSTICE
ALITO: You argue in your -- you argue in your brief that the primary purpose of
the Michigan law limiting marriage to a man and a woman was to demean gay
people; is that correct?
MS.
BONAUTO: The Michigan -- the Michigan statute and amendment certainly went out
of their way to say that gay people were in some sense antithetical to the good
of society. They wrote that --
JUSTICE
ALITO: And did -- did you say in your brief that the primary purpose of that
was to demean gay people?
MS.
BONAUTO: I think it has that effect, Your Honor. I do. Now, at the same time
--
JUSTICE
ALITO: Is that true just in Michigan or is that true of -- of every other State
that has a similar definition of marriage?
MS.
BONAUTO: Well, if we’re talking about the States that have constitutional
amendments, many of them are similar. There are a few States that have just
statutes and didn’t have amendments, and there’s some, of course, that had none
of the above.
But
even if there’s not a purpose to demean, I think the common commonality among
all of the statutes, whether they were enacted long ago or more recently, is
that they encompass moral judgments and stereotypes about gay people. Even if
you think about something 100 years ago, gay people were not worthy of the
concern of the government and the -- and -- and moral judgments about --
JUSTICE
ALITO: Well, how do you account for the fact that, as far as I’m aware, until
the end of the 20th century, there never was a nation or a culture that
recognized marriage between two people of the same sex? Now, can we infer from
that that those nations and those cultures all thought that there was some
rational, practical purpose for defining marriage in that way or is it your
argument that they were all operating independently based solely on irrational
stereotypes and prejudice?
MS.
BONAUTO: Your Honor, my position is that times can blind. And if you think
about the example of sex discrimination and what it -- again, I assume it was
protected by the Fourteenth Amendment, but it took over 100 years for this
Court to recognize that a sex classification contravened the Constitution.
Argument 8: Is
This Gender Discrimination?
Chief
Justice Roberts raised one of the most intriguing questions during oral
argument – whether this matter should be treated as a case of gender
discrimination! Mr. Bursch replied that the state laws denying people the right
to marry someone of the same sex is not gender discrimination because men and
women are being treated the same, and that even if it were gender
discrimination, it is appropriate to do so because of the biological
differences between men and women:
CHIEF
JUSTICE ROBERTS: Counsel, I’m -- I’m not sure it’s necessary to get into sexual
orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe,
Sue can marry him and Tom can’t. And the difference is based upon their
different sex. Why isn’t that a straightforward question of sexual
discrimination?
MR.
BURSCH: Two reasons. All of this Court’s landmark precedents in this area in
sexual discrimination law have always involved treating classes of men and
women differently. And that’s not what we have here.
But
-- but even more fundamentally than that, this Court has recognized in Nguyen
v. INS that it’s appropriate to draw lines based on sex if it’s related to biology.
In
her closing remarks Ms. Bonauto agreed that these laws are based on gender:
MS.
BONAUTO: … we agree that these restrictions are, in fact, linked to gender.
There’s official classification here, and they are sex linked in an additional
way, and that is ideas about what is a proper relationship for a man to have, a
real man or a real woman, and that is obviously not with a person of the same
sex.
Argument 9: The
Meaning of Lawrence v. Texas
Another
fascinating aspect of oral argument was how each party treated Lawrence v. Texas, the 2003 case
authored by Justice Kennedy. In Lawrence
the Supreme Court overruled Bowers v.
Hardwick and declared that it was unconstitutional for a state to make same
sex intercourse a crime.
Chief
Justice Roberts distinguished Lawrence
from Obergefell on the ground that
the law in Lawrence imposed a punishment while the laws in question in this
case merely withhold a benefit:
CHIEF
JUSTICE ROBERTS: The difference, of course, is Lawrence, the whole argument is the State cannot intrude on that
personal relationship. This, it seems to me, is -- is different in that what
the argument is is the State must sanction. It must approve that relationship.
They’re two different questions.
Solicitor
General Verrilli agreed with Roberts about the “penalty/benefit” distinction,
but he painted Lawrence in a completely different light. To him, Lawrence
opened the door to liberty and equality – it welcomed gays and lesbians into
our lives and our communities as equals … and now they have come forward to
request that their unions also be recognized as equal. Here is Verrilli on the
meaning of Lawrence:
GENERAL
VERRILLI: It is different, I agree. And I -- and it leads to the second thing I
think that the -- that the Lawrence
catalyzed for our society, was it put gay and lesbian couples, gay and lesbian
people, in a position for the first time in our history to be able to lay claim
to the abiding promise of the Fourteenth Amendment in a way that was just
impossible when they were marginalized and ostracized.
And
you’re right, Mr. Chief Justice, this is about equal participation, participation
on equal terms in a State-conferred -- a State-conferred status, a State
institution. That is different than Lawrence,
but I do think that what Lawrence has
allowed us to see is that the justifications for excluding gay and lesbian
couples from equal participation in this institution just hold up.
Verrilli
returned to this theme in his passionate closing:
GENERAL
VERRILLI: Well, because we think -- well, because we think while we do see that
there is, of course, this profound connection, we do think that for reasons
like the ones implicit in the Chief Justice’s question, that this issue really
sounds in equal protection, as we understand it, because the question is equal
participation in a State conferred status and institution. And that’s why we think
of it in equal protection terms.
And
if I could just in the -- in the little time that I have left, I’d like to
suggest this, that what the Respondents are ultimately saying to the Court is
that with respect to marriage, they are not ready yet. And yes, gay and lesbian
couples can live openly in society, and yes, they can raise children. Yes, they
can participate fully as members of their community. Marriage, though, not yet.
Leave that to be worked out later. But the Petitioners -- the Petitioners, these
gay and lesbian couples are --
JUSTICE
SCALIA: Or not. Or not. I mean, that’s not what they are saying. They are
saying leave it to the people. It will be worked out later or not.
GENERAL
VERRILLI: But what these gay and lesbian couples are doing is laying claim to
the promise of the Fourteenth Amendment now. And it is emphatically the duty of
this Court, in this case, as it was in Lawrence,
to decide what the Fourteenth Amendment requires.
And
what I would suggest is that in a world in which gay and lesbian couples live
openly as our neighbors, they raise their children side by side with the rest
of us, they contribute fully as members of the community, that it is simply
untenable -- untenable to suggest that they can be denied the right of equal
participation in an institution of marriage, or that they can be required to
wait until the majority decides that it is ready to treat gay and lesbian
people as equals. Gay and lesbian people are equal. They deserve the equal
protection of the laws, and they deserve it now. Thank you.
Justice
Kennedy drew another analogy regarding Lawrence
and Obergefell. Kennedy, who was the
author of Lawrence, remarked that
there had been about the same number of years between Brown v. Board of Education
and Loving v. Virginia as between Lawrence v. Texas and the present case:
JUSTICE
KENNEDY: … But on a larger scale, it’s been -- it was about -- about the same
time between Brown and Loving as between Lawrence and this case. It’s about 10
years.
Argument 10:
Rights of Conscience Will Be Violated
Another
concern that was raised during oral argument involved rights of conscience.
Justice Scalia persisted in questioning whether members of the clergy could be
forced to perform same-sex marriages. Attorney Bonauto assured him that the
First Amendment would prohibit that.
MS.
BONAUTO: If one thing is firm, and I believe it is firm, that under the First
Amendment, that a clergyperson cannot be forced to officiate at a marriage that
he or she does not want to officiate at.
The
subject was raised again by Chief Justice Roberts in his questioning of
Solicitor General Verrilli. Verrilli correctly responded that the Constitution
does not control this matter, but rather that it would depend upon the
enactment of statutes prohibiting acts of private discrimination.
CHIEF
JUSTICE ROBERTS: Counsel, I’d like to follow up in a line of questioning that
Justice Scalia started.
We
have a concession from your friend that clergy will not be required to perform
same-sex marriage, but there are going to be harder questions. Would a
religious school that has married housing be required to afford such housing to
same-sex couples?
GENERAL
VERRILLI: I guess what I’d -- I’d like to make three points about that, if I
could, Mr. Chief Justice.
CHIEF
JUSTICE ROBERTS: Well, the first part --
GENERAL
VERRILLI: And I will -- and I’ll go right at the question you asked.
The
first one is, of course, this Court’s ruling addresses what the States must do
under the Fourteenth Amendment.
And
the -- and the second point is that when you get to a question like the one
Your Honor asked, that is going to depend on how States work out the balance between
their civil rights laws, whether they decide that there’s going to be civil
rights enforcement of discrimination based on sexual orientation or not, and
how they decide what kinds of accommodations they are going to allow under
State law.
And
they could well -- you know, different states could strike different balances.
CHIEF
JUSTICE ROBERTS: What about Federal -- it’s a Federal question if we make it a
matter of constitutional law.
GENERAL
VERRILLI: But the question of what -- how States use their enforcement power is
up to the States.
CHIEF
JUSTICE ROBERTS: Well, you have enforcement power, too.
GENERAL
VERRILLI: Right. And -- and -- well, that’s certainly true, but there is no
Federal law now generally banning discrimination based on sexual orientation,
and that’s where those issues are going to have to be worked out.
Justice
Alito asked about the precedent of Bob Jones University and the possible loss
of tax exempt status. Verrilli had no answer other than “it is going to be an
issue”:
JUSTICE
ALITO: Well, in the Bob Jones case,
the Court held that a college was not entitled to tax-exempt status if it
opposed interracial marriage or interracial dating. So would the same apply to
a university or a college if it opposed same-sex marriage?
GENERAL
VERRILLI: You know, I -- I don’t think I can answer that question without
knowing more specifics, but it’s certainly going to be an issue. I -- I don’t
deny that. I don’t deny that, Justice Alito. It is -- it is going to be an
issue.
Argument 11:
Slippery Slopes
Justice
Alito asked Attorney Bonauto if the Court were to recognize same sex marriage
as a fundamental right, whether polygamous relationships would also have to be
recognized:
JUSTICE
ALITO: Suppose we rule in your favor in this case and then after that, a group
consisting of two men and two women apply for a marriage license. Would there
be any ground for denying them a license?
Bonauto
responded that there would still be legitimate reasons for the state not to
recognize such marriages as valid:
MS.
BONAUTO: … And I assume that the States would come in and they would say that
there are concerns about consent and coercion. If there’s a divorce from the
second wife, does that mean the fourth wife has access to the child of the
second wife? There are issues around who is it that makes the medical
decisions, you know, in the time of crisis.
I
assume there’d be lots of family disruption issues, setting aside issues of
coercion and consent and so on that just don’t apply here, when we’re talking
about two consenting adults who want to make that mutual commitment for as long
as they shall be. So that’s my answer on that.
In
the same vein, Justice Alito asked Solicitor General Verrilli whether there was
any difference between a law that
prohibits two siblings from marrying and a law that prohibits a gay couple from
marrying. Verrilli responded that such laws prohibit some heterosexual couples
from marrying but that they bar all same-sex couples from marrying:
JUSTICE
ALITO: Well, let’s -- let’s think about two groups of two people. The first is
the same-sex couple who have been together for 25 years, and they get married
either as a result of a change in State law or as a result of a Court decision.
The second two people are unmarried siblings. They’ve lived together for 25
years. Their financial relationship is the same as the -- the same-sex couple.
They share household expenses and household chores in the same way. They care
for each other in the same way.
Is
there any reason why the law should treat the two groups differently?
GENERAL
VERRILLI: Well, I’m not sure that the law would -- the -- the law allows 100
percent of heterosexual people to enter into a marriage that’s consistent with
their sexual orientation, and in these States, it forbids 100 percent of gay
and lesbian people from entering into a marriage that’s consistent with their
sexual orientation --
Justice
Kagan posed a slippery slope question of her own. She asked Attorney Bursch
whether it would be constitutional for the government to ask a heterosexual
couple who were about to be married whether they intended to have children.
Bursch initially resisted answering; Justice Kennedy insisted that he answer
it, and in the end Bursch responded that it would be an unconstitutional
invasion of privacy for the state to ask this question:
JUSTICE
KAGAN: Mr Bursch, suppose -- suppose this: Suppose that there’s a State with a
very procreation-centered view of marriage of the kind that you’re talking
about. And it -- you know, so emotional commitment and support, all of these,
the State thinks are not the purpose of marriage and they want their marriage
licenses to be addressed only to the things which serve this procreation
purpose. And so they say, Well, we’re not giving marriage licenses to any -- to
anybody who doesn’t want children. So when people come in and ask for a
marriage license, they just ask a simple question: Do you want children? And if
the answer is no, the State says, no marriage license for you. Would that be
constitutional?
MR.
BURSCH: Well, that would cut against the State’s interest as you’ve just
described it because even people --
JUSTICE
KAGAN: No, the State has -- the State has this -- it’s not a perfect
correlation, but the State says that the best -- the best way to promote this
procreation-centered view of marriage is just to limit marriage to people who
want children. So that’s what it does. Would that be constitutional?
MR.
BURSCH: But, Justice Kagan, even people who come into a marriage thinking they
don’t want to have children often end up with children. And that State’s
interest isn’t binding those--
JUSTICE
KAGAN: No, but this State --
JUSTICE
KENNEDY: But what is your --
JUSTICE
KAGAN: What you said --
JUSTICE
KENNEDY: What is your answer to the question?
CHIEF
JUSTICE ROBERTS: Justice Kennedy.
JUSTICE
KENNEDY: What is your answer to the question?
MR.
BURSCH: Would it be constitutional?
JUSTICE
KENNEDY: Yes.
MR.
BURSCH: I think it would be an unconstitutional invasion of privacy to ask the
question.
JUSTICE
KAGAN: To ask if you want children is an unconstitutional invasion of
privacy?
MR.
BURSCH: I -- I think that would be the case, yes, just like it would be
unconstitutional --
Attorney
Bonauto on rebuttal closed oral argument on the marriage issue, tying together
many of the themes raised by the attorneys and judges. She stated:
MS.
BONAUTO: First, I just want to say that the idea that the ideas of marriage
will change is a false dichotomy. Right now, different-sex couples can choose
to marry and rear children. They can choose to marry at 70 or 90 because of
their commitment to one other. We honor both marriages. It is only same-sex
couples who are foreclosed from marrying under either vision.
Second,
we agree that these restrictions are, in fact, linked to gender. There’s
official classification here, and they are sex linked in an additional way, and
that is ideas about what is a proper relationship for a man to have, a real man
or a real woman, and that is obviously not with a person of the same sex.
I
hear that Michigan loves adoption, and, in fact, Michigan has placed intensely
vulnerable children with these petitioners who have nurtured them to a healthy
childhood. Does Michigan deny the marriage because they didn’t conceive those
children together, when Michigan would let other adoptive parents who are a
different-sex couple marry? No. Michigan is drawing a line because it does not
approve of the adult relationship, no matter what the protestations they
follow.
Next,
we hear a line it’s not disrespectful because it’s drawn based on biology. I
have to say one casualty of the marriage litigation is an impoverished view of
what is marriage and what is the role of biological procreation. The State’s
entire premise here is that if same-sex couples marry, then different-sex
couples won’t and have their children in a marriage. Those two could not be
further apart. People make their own decisions. It is beyond attenuated.
And
the idea also that there are other people who raise children -- and good for
them, it’s something, of course, that I hope policymakers would support. But
it’s adult relationships that we’re talking about at the foundation here are
different adult relationships, and telling same-sex couples who have made that
commitment to one another and have committed to raising children that they
can’t is what is stigmatizing.
And
then, if I may, my -- my last point is that the only way I can really understand
Michigan’s points about procreation and biology and so on is when I look, for
example, at page 31 of their brief. And they say that what they care about is
people who have children together staying together and providing a long-term,
stable situation for their children.
That
interest applies full force in this context, because by denying marriage to
same-sex couples, you are denying not only the protection for the adults, which
is independently important, you are denying those protections and that security
that would come from having married parents.
So
with that, thank you.
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