The U.S. Supreme Court is hearing arguments Tuesday about whether states have the power to ban same-sex marriage. A dozen couples are challenging the bans in Ohio, Michigan, Kentucky and Tennessee.
The four states are the only ones whose bans on gay and lesbian marriages were upheld by federal appeals courts. A judge who voted in the majority in that case said the issue should be resolved by a vote, not a court. The case is expected to have a broad impact.
Gay marriage is now legal in 36 states — including many whose bans were overturned by federal courts. The unions are in limbo in Alabama, where probate courts were ordered to await the U.S. Supreme Court’s ruling. Tuesday’s hearings are the first time the high court has taken up the issue since 2013, when it voted 5-4 to strike down the Defense of Marriage Act.
“The court has said repeatedly there is a fundamental right to marry,” says NPR’s Nina Totenberg, who was in the courtroom Tuesday. We asked her about the case; her answers are below. (The court is also posting audio from the arguments online.)
The arguments the justices heard today:
In the first half of the argument, Mary Bonauto, representing the gay couples, got pummeled by a lot of justices — conservative justices — who noted that we’ve had marriage between a man and a woman for millennia and only, as of 2000, did anyone, any state, any government — and it was actually the Netherlands — finally say, we’ll marry people of the same sex.
The chief justice said the debate over this issue will be shut down if the court is to say that there’s a constitutional right to marry for gay couples.
Justice Scalia asked whether ministers would be able to refuse to marry two gay men. The answer was that it has to be worked out under state laws. He said, but that could happen — it could happen that a minister would be forced to marry two gay men, in violation of his beliefs.
Justice Alito asked, well then why not marry four gay men together? Why just two?
That was sort of the tenor of the argument from the conservative side of the bench. And even Justice Kennedy, who’s considered the pivotal vote in this case, repeatedly asked about the question of millennia: We’ve only had for 15 years any discussion of same-sex marriage. So why not let it revert to the democratic process?
On the other side, the liberal members of the court, this time joined by Justice Kennedy, asked a whole bunch of questions about the fundamental right to marry.
Led by Justice Kagan, for example, they asked the lawyer for the state of Michigan, John Bursch, what is the justification for leaving out gay couples? And he said, “Our focus is procreation.”
The justices asked about same-sex parents who want “the dignity of being married.”
Bursch’s answer was that there was the fear that if the state actually endorses, gives that dignity to gay couples, then heterosexual couples will less frequently get married, and perhaps not have children. The court seemed to balk at that idea. It went back and forth for quite a while.
A loud protester interrupted the proceedings, fairly early in the two hours of arguments.
Somebody in the audience — I don’t yet know who — got up and started screaming, “If you support gay marriage, you’ll burn in hell,” and things to that effect.
He was hauled out of the courtroom, but you could hear him for quite a while.
It was just as the government’s lawyer, Donald Verrilli, was getting up to argue, and the chief justice said, “Mr. Verrilli, would you like to take a minute?”
He said, “Yes I would,” and paused.
There was this pause, and Verrilli took his moment, which was just a matter of seconds.
“It was rather refreshing, actually,” Justice Scalia said — so it was a moment of levity as this guy was hauled out. But then everything reverted to a very serious argument.
Protests are very unusual in high-profile cases, because these seats are highly coveted. Somebody was probably in line for many days to get that seat, and managed to look like a person who wasn’t going to cause any trouble.