The US supreme court appeared to be heading toward limited national recognition of same-sex marriages at minimum on Tuesday, as justices expressed concern about forcing all states to allow them but remained sympathetic to the argument that weddings held elsewhere should be upheld.
The court heard legal arguments for two and a half hours, in a landmark challenge to state bans on same-sex marriage that is expected to yield a decision in June.
Despite hopes among campaigners that the nine justices might be on the verge of a historic civil rights decision declaring same-sex unions as a constitutional right, however, a majority of the bench expressed concerns about “redefining” marriage in states that had voted to ban them.
“This definition has been with us for millennia, and it’s very difficult for the court to say, ‘Well, we know better’,” said Justice Anthony Kennedy, regarded as the potential swing voter between liberals and conservatives on the court.
Chief justice John Roberts echoed Kennedy’s concerns, pointing out that he had struggled to find a historical definition of marriage that did not describe the practice as between a man and a woman.
“You’re not seeking to join this institution, but change what the institution is,” Roberts said.
The hearing was dramatically interrupted by a protester shouting “The Bible teaches that if you support gay marriage you will burn in hell for eternity” – a rare interruption that prompted Justice Antonin Scalia to quip that the incident was “rather refreshing, actually”.
But the second part of the session was much more one-sided, with even the arch-conservative Scalia questioning whether it made sense to allow states to overturn same-sex marriages carried out elsewhere in the US. (They are currently legal in 37 states and the District of Columbia.)
Quoting article four of the constitution, which requires states to give “full faith and credit” to acts, records and judicial proceedings of other states, Scalia was joined by Roberts, who also seemed alarmed at the prospect of patchwork of differing recognition standards.
‘The government’s interest is not about love’
It is not inconceivable, however, that both Kennedy and Roberts could still join liberals on the bench and support a more sweeping ruling in favour of gay marriage in every state.
Both seemed unconvinced by the arguments put forward by John Bursch, assistant attorney general for Michigan, one of four states arguing before the court to uphold bans on same-sex marriages.
Bursch rested heavily on the claim that marriage was defined by law solely to encourage procreation within stable family units – and therefore could only meaningfully apply to men and women.
“The government’s interest is not about love, it is about binding children to their biological parents,” he said. “The state does not care about your sexual orientation. … This is obviously a very emotional issue where reasonable people can disagree.”
But Kennedy joined with liberals on the bench in questioning where such a conundrum left families that had adopted children or marriages between older couples beyond child-bearing age.
“Under your view, it would be very difficult for same-sex couples to adopt some of these children,” said Kennedy. “I think the argument cuts quite against you.”
Ruth Bader Ginsburg, who is 82, drew laughter when she added: “Suppose a couple – 70-year-old couple – comes in and they want to get married.”
Ginsburg also repeatedly pointed out that the definition of marriage had already shifted considerably in recent years, particularly in relation to the legal rights of women.
The justices will decide by the end of the court’s term in June. But the dilemma for swing voters on the bench like Kennedy and Roberts is more likely to be whether they feel it is appropriate for the top tribunal to modernise marriage further, or whether that should be left to individual states to decide.
“This case isn’t about how to define marriage,” argued Bursch. “It’s about who gets to decide that question. Is it the people acting through the democratic process, or is it the federal courts?”
An evolution to ‘egalitarian’ marriage
Mary Bonauto, an attorney for the many plaintiffs who brought the multi-state joint appeal, disputed the premise that same-sex marriage was a new question. The issue, she argued, has plagued the United States for decades, even if the tide has turned dramatically in favour of marriage equality in recent years.
She received a boost from members of the court’s liberal wing, Justices Stephen Breyer and Ruth Bader Ginsburg, who pointedly questioned why states should exclude same-sex couples from the right to marry.
Ginsburg was particularly striking in her criticism of bans on same-sex marriage, noting that allowing gay couples to marry took nothing away from heterosexual couples. The institution of marriage, she added, has changed in recent years to become more “egalitarian”.
Breyer nonetheless showed concern that Bonauto had not directly answered the core question of why the court should determine the definition of marriage, as opposed to American voters.
“The opposite view has been the law everywhere for thousands of years among people who were not discriminating against gay people and suddenly you want nine people who are operating outside the ballot box to decide what states can do,” Breyer said.
With respect to who should decide whether same-sex marriage should be lawful, Bonauto said the choice was not between the supreme court and the states. The real question, she argued, was whether it was the right of an individual to marry or the right of the government to decide for the individual.
The court last weighed the issue in 2012, with challenges to California’s effective ban on same-sex marriages, known as Proposition 8, and a key provision of the federal Defense of Marriage Act. The justices then ruled in favour of marriage equality proponents, but ducked the question of whether gay marriage was a constitutional right.
The rulings nonetheless kicked off a wave of decisions among courts across the country that struck down state-level bans on same-sex marriage.
An animated crowd of roughly 1,000 people gathered outside the supreme court building on Tuesday, of which an estimated two-thirds were supporters of marriage equality.
Opponents largely appeared to protest on theological grounds, holding signs that invoked the biblical definition of marriage and the right to religious freedom. Pro-gay marriage crowds responded to their presence by repeated chants of “God loves all” and “Love can’t wait”.
Steven Hicks, an employee at the Department of Education, clashed with a woman holding a sign that read, “A child needs a mother and a father”, asking her what evidence she had to support the claim. The woman, Teri Pace of Orange, Virginia, countered that homosexuality was a choice, and that she thought it was important to “preserve the truth” that marriage is between a man and a woman.
Hicks told the Guardian that despite a minority of people who had shown up as part of a “last-ditch effort” to oppose gay marriage, the mood was mostly “celebratory and festive”.
“It’s a historic moment to reaffirm that marriage should be allowed for all Americans, not just some,” Hicks said.
