Same-sex marriage divided the Supreme Court on Tuesday in a protracted and at times passionate oral argument that might have tilted, ever so slightly, toward marriage equality.
Justice Anthony Kennedy, the author of past decisions supporting gay rights and widely presumed to be the swing vote once more, hinted at sympathy for same-sex marriage.
“It’s dignity-bestowing,” Kennedy said of marriage in general, adding that gay and lesbian couples “say they want the same ennoblement.”
In 2013, Kennedy deployed the term “dignity” numerous times in his decision striking down the Defense of Marriage Act’s prohibition on same-sex couples receiving federal benefits. In 2003, the Sacramento, California, native wrote the decision striking down a Texas law banning homosexual sodomy, and in 1996 he wrote a decision striking down a Colorado ballot measure targeting gay rights.
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At the same time, Kennedy underscored lingering uncertainties Tuesday when he cautioned that the definition of marriage as being between a man and a woman “has been with us for millennia, and it’s very difficult for the court to say, ‘Oh, well, we know better.’”
Amid all the pomp and carnival that accompany landmark court cases, including flag-waving demonstrators outside and a jam-packed press gallery inside, the two-and-a-half-hour oral argument Tuesday revolved around marriage limitations in Kentucky, Ohio, Tennessee and Michigan.
Each of the states has restricted marriage in a variety of ways. In 2004, for instance, 74.5 percent of Kentucky voters ratified a state constitutional amendment that declares only marriage between “one man and one woman” to be valid.
Questions and statements from the other justices Tuesday showed the rest of the court split along customary lines, with Republican-appointed conservatives opposing same-sex marriage and Democratic-appointed liberals supporting it.
“There’s a right to marry, and that’s fundamental,” Justice Elena Kagan said, citing previous Supreme Court decisions involving prisoners and others, “and everyone should be entitled to it unless there’s a good reason for the state to exclude them.”
Skeptics countered that individual states deserved the opportunity to decide marriage policy.
“People feel very differently about something if they get to vote on it, rather than have it imposed on them by the courts,” Chief Justice John Roberts Jr. said.
Justices addressed two fundamental questions during the argument, which was more than twice as long as the typical Supreme Court hearing.
One is whether the Constitution’s 14th Amendment, which guarantees due process and equal protection of the law, compels states to license same-sex marriages. The other is whether the same constitutional protections require states to recognize same-sex marriages performed elsewhere.
In theory, the court could answer “no” to the first question and “yes” to the second. This would leave intact the laws or lower-court rulings that render same-sex marriages legal in 37 states and the District of Columbia while allowing the remaining states to make their own decisions.
Roberts, intriguingly, suggested that “the first question is a big step,” while the question of requiring states to recognize marriages performed elsewhere might be “pretty straightforward.” The chief justice’s comment raised the possibility that he might join some but not all of a narrow-majority decision backing same-sex marriage.
His conservative colleagues, Antonin Scalia and Samuel Alito, voiced flat-out skepticism, and their votes against same-sex marriage aren’t in doubt.
“I’m concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons,” said Scalia, himself a devout Roman Catholic.