Takeaways from oral arguments in Obergefell v. Hodges

The Supreme Court heard oral arguments in Obergefell vs. Hodges this morning, and preliminary indications are that the Court is ready to rule 5-4 in favor of marriage equality. However, while even those opposed to marriage equality concede as much, a win — especially one in which marriage equality is affirmed as a civil rights issue — is no guarantee.

Justices Kennedy and Roberts asked probing questions on both sides, but seemed to break for and against the plaintiffs, respectively. The other justices were their predictable selves, questioning and arguing with attorneys along the ideological lines everyone expected them to.

Kennedy

Anthony Kennedy is notorious for being a “human jump ball,” a reference to his unpredictability and penchant for asking difficult questions of the side he eventually rules in favor of. Living up to this nickname, Kennedy worried pro-LGBT observers early on when he noted that the institution of marriage has been around for “millennia,” suggesting that tradition should be cause for caution and patience in ruling.  However, soon after that, he noted that roughly the same amount of time stood between the Lawrence v. Texas and Obergefell v. Hodges rulings as there was between Brown v. Board of Education and Loving v. Virginia, drawing a clear parallel between sexual orientation and race and undercutting his own tradition-based line of questioning.

Kennedy also had little patience for lawyers defending state-level bans on marriage equality when they claimed that legalizing marriage equality would result in more children born out of wedlock, shooting back that “I think that argument cuts quite against” banning same-sex marriage. Finally, he poked holes in Michigan’s ban on same-sex marriage, remarking that the law “assumes” that homosexual couples by definition can’t have the “more noble purpose” for marriage that heterosexual couples have.

Roberts

Chief Justice John Roberts could be the most important justice in this case because of how he rules as opposed to what he rules. And it did appear through his questions that he was at the very least skeptical of using heightened scrutiny to legalize same-sex marriage — an indication that the LGBT community might rather not have his vote.

The first question in the proceedings came from him, as he interrupted Mary Bonauto, arguing for the plaintiffs, to object that same-sex marriage would “redefine” the institution of marriage, not merely allow same-sex couples to “join in” the institution. He went on to note that he had gone to the dictionary and been unable to find a definition written earlier than about twelve years ago that defined marriage as anything other than one man and one woman.

This would suggest that Roberts has found LGBT-inclusive definitions of marriage written in the last twelve years, but to him that was apparently beside the point.

Roberts expressed further concerns about the maintenance of defining marriage as husband and wife, objecting that “if [the plaintiffs] succeed, that core definition will no longer be operable…You aren’t seeking to ‘join’ the institution, you’re seeking to change the institution.”

While it would be possible for Roberts to rule in favor of marriage equality while being opposed to “redefining” marriage as anything other than one man and one woman, such a ruling would almost certainly be grounded in states’ (as opposed to civil) rights, which would give the LGBT community a muted victory.

As Adam Liptak of the New York Times reported, Roberts was also worried about the Court reaching such a definitive conclusion on a fast-moving social debate.

Breyer, Ginsburg, Kagan and Sotomayor

The court’s liberal bloc of justices gave predictable indications that they would rule in favor of marriage equality. Justice Sonia Sotomayor openly sparred with Justice Antonin Scalia over whether establishing a constitutional right to marriage equality would force religious leaders to perform marriages they held religious objections to, and strongly objected to the defendants’ argument that allowing same-sex marriage would have negative effects on society at large.

Justice Elena Kagan also rebutted Scalia’s concern over religious objections, noting that many rabbis currently refuse to marry Jews to non-Jews without running afoul of constitutional requirements.

Justice Ruth Bader Ginsburg took on the argument that the state has a procreative interest in marriage by raising the hypothetical of a 70-year old couple who wanted to get married, saying, “You don’t have to ask them any questions. You know they are not going to have any children,” but that no one is objecting to that couple getting married. She also pushed back against the argument that the United States should rely on “millennia” of historical understandings of marriage, noting that such a view would encourage the state to define marriage as being one man presiding over at least one woman. She went on to argue that, yes, same-sex marriage would not fit with this understanding of marriage, but it would fit with our current, more egalitarian understanding of marriage.

Justice Stephen Breyer, who didn’t feature heavily in directly questioning the attorneys, nevertheless delivered a powerful rebuttal to John Roberts’s aforementioned tradition argument, calling marriage a “fundamental liberty”:

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 administere 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?

Taken together, the four traditionally liberal justices all seemed to be safe bets to come down in favor of marriage equality.

Alito and Scalia

Conservative Justices Samuel Alito and Antonin Scalia were predictably hostile to the plaintiff’s arguments, throwing out a number of hypotheticals that mirrored common conservative talking points with respect to marriage.

Alito remarked that he was unaware of a culture prior to the 20th Century that recognized marriages between members of the same sex, prompting Ginsburg’s rebuttal. He also wondered aloud if permitting same-sex marriage would open the door for marriages involving more than two people.

Scalia, while remaining skeptical of same-sex marriage in general terms, at least conceded that, “the issue…is not whether there should be same-sex marriage, but who should decide the point,” a remark likely aimed at John Roberts in hopes of giving conservatives at least a partial victory in the case by classifying marriage as state-level policy issue as opposed to a civil right. He also quipped that it was “refreshing” when protestors interrupted the oral arguments to scream that homosexuality was an “abomination.” It was unclear if he was referring to the break in argument, or to the protestors themselves.

Thomas

Open up the transcript of today’s oral arguments, hit Command+F and type “Thomas.” You will find no matches. You should not be surprised. He’s going to side against marriage equality, and has no interest in asking anyone why he should or shouldn’t change his mind.

The Supreme Court will release its ruling on Obergefell v. Hodges in June. While there’s reason to be optimistic, the oral arguments did not provide a clear win for the LGBT community, and even if marriage equality is affirmed, it could be affirmed in narrow terms that aren’t transferrable to other LGBT cases involving discrimination unrelated to marriage.

Fingers crossed until then.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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