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.


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.


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.


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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22 Responses to “Takeaways from oral arguments in Obergefell v. Hodges”

  1. Rich says:

    I am cautiously optimistic about the outcome, but now it is just wait and see. I’m hoping it goes our way, of course, but I’m somewhat concerned.
    Your take on Kennedy is encouraging.

  2. WhateverMan says:

    No, it’s not. I still see the name Scalia there. ;)

  3. dcinsider says:

    Correct. And expect to see a similar outcome in Obergefell. I am guessing that Justice Kennedy writes the majority joined by the four horsemen (or horsepersons), Roberts writes a separate opinion concurring in the judgement (for historical reasons) and the three stooges bloviate about the inevitable decline of American civilization.

  4. Sharon4562 says:


  5. FLL says:

    I noticed that Lawrence v. Texas (2003) was 5-1-3, which is to say that there were three separate opinions: the 5-judge majority, Sandra Day O’Connor (who wrote a concurring opinion), and the remaining 3 justices (Scalia, Thomas and Rehnquist) who dissented. The split didn’t really matter because they had a 5-judge majority even without O’Connor.

  6. dcinsider says:

    The majority decides the case. So appellants (good guys) win. However, if the plurality is only 4 judges, with 2 others concurring in the judgement for different reasons, the plurality opinion is not precedential, thus it is not the law of the land.
    However, four justices agreeing on a point of law is not nothing. It is just not the lock down that 5 is.

  7. Naja pallida says:

    The only thing I gleaned from Roberts is that he’s concerned how this decision will frame his legacy. He wants to be remembered as this great conservative jurist champion, but also doesn’t want to be known as the Chief Justice who sided against an issue at a time when, by most measures, it is all but inevitable. If he rejects marriage equality, and most states and lower courts do it anyway, he’s going to look silly (sillier).

    The Roberts’ court fascination with legal gymnastics to justify narrow rulings won’t help that situation either. He’ll still look like the guy who tried to hedge his bets, or worse, like a coward, instead of addressing equality on its merits, as the Warren court did.

    They also can’t win by throwing it back to the states’ rights argument either, because the issue will just come back around to bite them all over again in a year or two. It would serve nothing but to kick the can down the road. Which could be the goal in itself, hoping that perhaps they can delay making a real decision until after a Republican president gets to choose the next justice? Seems kind of a stretch, but wouldn’t surprise me.

    There really is only a singular choice, assuming they care anything for the law and equality: a Loving v. Virginia style ruling, that stomps on the opponents of equality everywhere in the country all at once. Anything less won’t actually resolve the issue. Anything less will be the Supreme Court explicitly refusing to do their job, because their ideology is more important to them than the law or the people.

  8. Indigo says:


  9. 2karmanot says:

    With a little luck it could be Butoh.

  10. richardgrabman says:

    I’m no lawyer, but Roberts’ questions about gender discrimination seem to suggest maybe… possibly… being in favor of same-sex marriage. Not necessarily gay marriage, but on the right (er… CORRECT) side. That is, Roberts’ was noting that gender discrimination gets a higher scrutiny, and preventing persons of the same gender from marrying would be discriminatory. As it is, there’s no reason persons of the same gender might not marry for reasons having nothing to do with sexual orientation.

  11. GarySFBCN says:

    I appreciate your assessment and insights, Jon, thanks for posting this!

    I’m not worried. There is nothing that I can to to control the outcome – which I’m guessing has already been decided long ago.

    If by chance they rule against us, we’ll find another way.

  12. Indigo says:

    That’s my take on it, Kabuki. It’s always possible it’ll turn out to be Noh, though.

  13. FLL says:

    In that case, the decision is not precedential, meaning that because it lacks a majority, it is not the law of the land, but the ruling is (ban is unconstitutional).

    Thank you. That was the answer that I was looking for.

  14. FLL says:

    In that last scenario, which opinion becomes the law of the land, the plurality opinion (4 libs) or a Kennedy-Roberts opinion (2 votes)?

  15. dcinsider says:

    He cannot “create it.” He is just one vote, no different form the others. See my response above. The benefit of being Chief is you get to assign who writes the majority opinion (when you are in the majority). You cannot make people agree to an opinion that they do not support.

  16. dcinsider says:

    Five judges in agreement decide the case. Thus Kennedy and the four libs are a majority. If Roberts concurs in the judgement (i.e. bans are unconstitutional) and assigns himself to write the majority opinion, that opinion must be signed onto by at least four additional judges. So Roberts cannot just decide the case and make the others sign. He has to write an opinion that at least four of the five will agree to join. Otherwise, you have a potential split. That is called a plurality opinion.

    Let’s say that Roberts and Kennedy agree, but Ginsburg, Breyer, Kagan and Sontamayor don’t like their opinion. Now the four justices write separately. The six may agree that the ban is unconstitutional (majority ruling), but you can have many different reasons for reaching that conclusion. In this case you could see a 2-4-3 split. That means that the 4 votes are the plurality opinion (libs), 2 votes concurring in the judgment (Kennedy and Roberts), and three in dissent (three stooges).

    In that case, the decision is not precedential, meaning that because it lacks a majority, it is not the law of the land, but the ruling is (ban is unconstitutional).

  17. Sam_Handwich says:

    I find it difficult to believe that SCOTUS would reverse course now after declining to halt pro-gay rulings in circuits 4, 7, 9, 10, 11. There apparently weren’t 4 votes to grant cert in the appeals petitions, or 5 to grant the various motions for stays.

    Today was little more than Kabuki.

  18. FLL says:

    If Roberts jumps and assigns it to himself, a Roberts majority decision could be met with a 5 judge majority opinion if Roberts go too far down the rabbit hole for Kennedy’s liking.

    I’m curious to know if that’s true. Is it possible for a 5-judge majority to block Roberts if he wants to limit his opinion to Question 2 (states must recognize marriages from other states) and ignore Question 1 (the 14th Amendment requires marriage equality)?

  19. dcinsider says:

    This is no slam dunk, but you have to believe that Kennedy wants to leave his imprint on history, and this is the case that will define his legacy for decades. If Roberts jumps and assigns it to himself, a Roberts majority decision could be met with a 5 judge majority opinion if Roberts go too far down the rabbit hole for Kennedy’s liking. So I don’t see Roberts as a threat.

    I also don’t see Roberts joining the majority in the end, though I think it’s an even bet he might. I’d put Kennedy at 75-80% likely to go with us (perhaps higher), and the other four at 100%. Alito, Scalia, and Thomas are 100% as well.

    June 30th is 63 days away.

  20. FLL says:

    Does the benefit of a 6-3 majority (with Roberts writing the opinion) outweigh the harm of forgoing heightened scrutiny? Tricky question. After all, heightened scrutiny can be introduced in future cases.

    Does the benefit of a 6-3 majority (with Roberts writing the opinion) outweigh the clear harm of a decision that only verifies the obligation of the states to recognize marriages from other states, while ignoring any constitutional right to marriage? No, it does not outweigh that harm. Better a 5-4 victory than let Roberts create a scenario like that.

  21. Jon Green says:

    Fixed — thanks for the catch!

  22. Melba toast says:

    In the section heading for Breyer, etc, Kagan is spelled Hagan.
    PS Scalia is a dweeb.

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