As hundreds gathered outside the supreme court on Tuesday waving rainbow-colored flags and leading optimistic chants about a historic step toward marriage equality, the nine justices inside the nation’s highest court were far less unequivocal about what many see as the leading civil rights cause of this generation.
Many demonstrators in Washington seemed to be treating the ruling – expected in June – as a foregone conclusion, particularly after the court prompted a wave of states to grant gay couples the right to marry after its landmark ruling in 2013 striking down a core element of the federal Defense of Marriage Act.
But legal analysts warned that any predictions would be premature.
Several experts pointed out that the supreme court justices did not offer any distinct indication of where they stand as a majority, and Justice Anthony Kennedy – regarded by many as the potential swing vote in favor of marriage equality – did little to tip his hand.
“I think people may have thought it was going to be clearer from the argument than it seems it was,” Carl Tobias, a constitutional law professor at the University of Richmond School of Law, said. “My sense was people were surprised that Justice Kennedy wasn’t somewhat clearer, or surprised that he seemed to be equally strong in his questioning of both sides.”
Tobias cautioned that it was both “risky and tricky” to draw conclusions on a final result from the oral arguments alone, and that it remained hard to envision a scenario in which Kennedy ruled against marriage equality. “But there’s some tension for him between federalism and letting people decide on the one hand, and the interests of equality – especially in the context of marriage – on the other,” he added.
During the hearing Kennedy questioned whether the court could redefine what had been the historical definition of marriage.
“The word that keeps coming back to me is ‘millennia’,” said Kennedy, who wrote the opinion striking down the Defense of Marriage Act – the 1996 law that allowed states to refuse to recognize gay marriages – two years ago. “This definition has been with us for millennia. It’s very difficult for the court to say, ‘Oh well, we know better.”
Although his words caused concern among some proponents of same-sex marriage, lawyers who have fought prior LGBT battles pointed out that similar questions were raised by justices when the court last considered the issue with the Defense of Marriage Act (Doma) and California’s Proposition 8.
Roberta Kaplan, the attorney who argued and won the Doma case – United States v Windsor – said the exercise was essentially a reprise of that case, in which the court decided Edith Windsor, a woman whose same-sex marriage was recognized by the state of New York, had the right to claim a federal tax exemption for surviving spouses after her wife died and left Windsor her estate.
“I think the justices individually are in a very similar frame of mind, and for that reason I think we will win,” Kaplan told the Guardian. “I think Justice Kennedy is on our side.”
Asked about Kennedy’s references to “millennia”, Kaplan said that was the exception. All of Kennedy’s other statements, she pointed out, were favorable toward gay marriage – such as when he noted the “principal purpose of marriage was to afford dignity to the couples, which is denied to same-sex couples”.
“It’s obviously true that for millennia marriage was defined not to include gay people, but it’s also true that gay people couldn’t live open in most societies … the dilemma before the court is: given this new reality we live in where gay people’s dignity is recognized as equal, how do you reconcile that with the institution of marriage?”
The justices on Tuesday weighed up two questions: whether gay marriage is a constitutional right, and whether states must recognize same-sex unions performed in another state.
Douglas Hallward-Driemeier, who argued the second question, said he was pleased to have the opportunity to emphasize the real people affected by states that denied marriage rights to same-sex couples – such as hospital visitation rights or the ability of a man to be listed on his husband’s death certificate.
Although some of the judges were skeptical as to whether states should be forced to recognize same-sex marriages, as opposed to letting voters decide at the ballot box, Hallward-Driemeier said their questions were not surprising.
“It’s hard to take too much from the questions. The justices rightly were asking hard questions of both sides,” he told the Guardian. “I’ve been around the court long enough to know it’s a dangerous thing to start making prognostications.”
Even the court’s conservative wing at times sharply questioned those arguing in favor of upholding state bans on same-sex marriage.
Justice Antonin Scalia asked why states should not be forced to recognize same-sex marriages performed elsewhere, citing the full faith and credit provision of the constitution, which affirms that states must respect the “public acts, records, and judicial proceedings of every other state.” Chief justice John Roberts, also a possible swing vote, focused on whether denying same-sex couples the right to marry amounted to sexual discrimination.
The justices offered enough of a hard line that both sides were able to claim the proceedings left them cautiously optimistic.
LGBT advocates were nonetheless buoyed by the fact that the court of public opinion is now largely on their side. In addition to majority support among Americans for marriage equality, same-sex couples may now legally marry in 37 states and Washington DC.
Jon Davidson, the legal director for Lambda Legal who was present for the arguments, said he left the courtroom feeling “encouraged”. Even the tough questions, he said, did not necessarily mean that the justices were leaning against same-sex marriage – but rather could be interpreted as making a point to their colleagues on the bench or discerning how to write a legal opinion one way or the other.
Definitions of marriage, he said, “are not immune from constitutional review. The reality is the historical definition excludes and hurts one group of people.”
