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 --
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.
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.