The Supreme Court heard arguments on April 28 in Obergefell v. Hodges. This case involved challenges to laws against same-sex marriages that were passed by four states: Ohio, Tennessee, Kentucky, and Michigan.
The Court asked both parties to answer two questions. The Court asked the parties to answer two specific questions: 1) Does the Fourteenth Amendment compel a state’s recognition of a marriage between two people of the same sex if their marriage was legally licensed and performed outside of condition?
Kennedy asked Donald Verrilli: “Haven’t we learnt a great deal… in just the last 10 years, since Lawrence?”
This is an impressive rhetorical strategy. In the Brown case, it was ruled that the segregation of races in public schools violated the Equal Protection Clause. Loving reached the same conclusion regarding the prohibitions on interracial marriage. Kennedy cited the evolution from racial discrimination to racial equalization in marriage regulation as a model of how to move from criminalizing homosexuality to legalizing same-sex unions nationwide. The comparison seems to show the skepticism he has towards laws that limit marriage to one man or one woman.
Justice Kennedy also confronted the Michigan Special Assistant Attorney General about the purpose of marriage.
John J. Bursch explained that the marriage of opposite-sex couples is based on procreation. He said marriage acts as a glue for linking children to their biological parents.
Kennedy was confused by Bursch’s assertion that marriage is just a social regulation. He said that the “whole purpose of marriage” is “to bestow […] to both men and women.”
Kennedy’s previous opinions were based on the idea that “dignity” and “status […] a man and a woman in a lawful marriage are important.”
Chief Justice Roberts is the likely swing vote if supporters of marriage equality win Justice Kennedy.
The Chief Justice, who is usually a conservative, has defied his party in the past. He sided with the Affordable Care Act (also known as Obamacare) in the National Federation of Independent Business V. Sebelius.
Roberts’ switch seemed unlikely, given what occurred during the arguments on Tuesday.
Roberts said that the debate would end if marriage equality supporters “prevail,” which means that closing down arguments would also “close mind” and stop any acceptance of same-sex relationships by society. Roberts said, “People will feel differently about a certain issue if they are given the chance to vote than if it is imposed by… courts.”
Roe v Wade looms large in the background.
Unspoken is the comparison to abortion.
Many commentators think that although Roe v Wade is a victory for abortion rights, because of how the Supreme Court transformed a political argument into constitutional law, it has nestled each side into their ideological base.
One of us, Dara E. Purvis, has written about the inapplicability of marriage equality in this argument. This comparison is not appropriate for one main reason: visibility. Women who have undergone abortions are still stigmatized and seldom discuss the subject openly.
Marriage equality, on the other hand, is visible by definition. One of the main factors that determines an individual’s support for LGBT rights in general and marriage equality specifically is whether or not they know of a gay person.
Oral argument is a very dangerous and even foolish way to predict a case’s outcome.
Several outcomes could occur in the case before the Court. It would be most concerning if a Justice were unable to vote in a case. Justice Ginsburg has been ill recently, and this could lead to a 4-4 split.
The Court can either decide to hold the case until next term or make a decision with a 4-4 split, which would uphold the Sixth Circuit and the challenged laws but leave unresolved the circuit split.
A majority of the Court may find that the Constitution does not guarantee marriage equality for same-sex partners. Over a dozen states would be able to appeal federal court orders that prohibit them from issuing marriage certificates to same-sex partners. If they succeeded, they would then try to determine how to handle marriages already solemnized.
A split court is a scenario that could occur.
The Court could also split on both issues, holding that while the Constitution doesn’t require states to issue marriage licenses to couples of the same gender, they must still recognize marriages between same-sex partners performed in another state. It would be a real victory for marriage equality because the only cost involved is crossing state borders.
The Court may also find that, under the Fourteenth Amendment, states are required to allow couples of the same gender to marry. In this case, it is unlikely that the Court will address the issue of interstate marriage recognition.
Even if the Court struck down the challenged laws, that does not mean that sexual minorities would immediately achieve full equality.
The anti-discrimination laws of some states do not protect sexual minorities. For example, Pennsylvania, where your authors live.
It is now a highly visible debate, as in the case of the Indiana wedding, about whether or not business owners are allowed to object on religious grounds when providing catering, photography, and venues for same-sex marriages.
