Oral arguments provide a small window into the super-secretive process of Supreme Court deliberations. Justices frequently telegraph their views on the case in the questions they ask and their reactions to the attorneys’ answers.
These often-feisty exchanges between justices and attorneys–and sometimes between the justices themselves–do not, however, always predict how the Court will rule. This may be true of the oral argument in the marriage equality cases on April 28, a two-and-a-half-hour spectacle that left even the most seasoned Supreme Court watchers wondering whether the Court is ready to make marriage equality the law of the land.
Commonly described as the most important civil rights case of our era, a multitude of gay and lesbian couples are challenging their home state’s refusal to (1) allow them to marry and (2) recognize their marriages performed in states that do allow them.
These challenges require the Court to consider myriad complex constitutional issues, including the boundaries of the 14th amendment’s equal protection guarantees, whether marriage is a substantive due process/fundamental right, and whether the Full Faith and Credit clause requires a state to recognize same-sex marriages performed in another state.
Questions from the Court’s conservative wing–Chief Justice Roberts joined by Associate Justices Alito and Scalia–clearly telegraphed their views that the traditional one man/one woman definition of marriage had served the world well for “millennia” and that no reason exists to disturb it now. Justice Thomas maintained his own tradition by not asking a single question.
Justice Alito saluted the slippery slope argument: if the Court condones the marriages of same-sex couples, will it be able to deny marriage to “a group consisting of two men and two women,” or to siblings? Justice Scalia campaigned for leaving the marriage issue to “the people” to decide (through their elected legislators or ballot initiatives) and suggested that same-sex couples are entitled to only the lowest level of constitutional protection (i.e. equal protection rational basis analysis).
Equally predictably, the Court’s liberal bloc–Justices Ginsburg, Kagan, Breyer, and Sotomayor–hammered away at the states’ rationale that allowing same-sex couples to marry causes opposite-sex couples to devalue marriage, thus leading to more children born out of wedlock and more married parents abandoning their children. These justices zeroed in on the obvious disconnect between this argument and reality. “How does withholding marriage from one group, same-sex couples, increase the value to the other group?” Justice Sotomayor asked incredulously.
The Plot Thickens
Oral arguments often include a few heart-stopping moments, and the marriage cases did not disappoint.
Justice Kennedy–the likely swing vote who penned the Court’s pro-LGBT decisions in Romer, Lawrence, and Windsor–caused massive heart palpitations by citing, with apparent approval, the states’ reliance on tradition to justify their respective marriage bans.
“This definition [of one man-one woman] has been with us for millennia,” Kennedy stated. “It’s very difficult for the Court to say, oh, well, we–we know better.”
Heart rates likely returned to normal when Justice Kennedy made a number of subsequent pro-equality comments, including multiple references to the inherent “dignity” of marriage that he emphasized in Windsor.
Chief Justice Roberts generated similar shock and awe when he characterized the case as “a straightforward question of sexual discrimination,” rather than sexual orientation discrimination. “If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” Justice Roberts observed. “And the difference is based on their (Sue and Tom) different sex.”
If a majority of his colleagues adopt this view, Justice Roberts’ gender discrimination analysis could secure heightened legal protection for LGBT people well beyond the marriage context.
To be sure, the vast majority of Justice Roberts’ questions suggested alignment with the states’ arguments. But his gender discrimination remarks trigger the possibility of a 6-3 vote for marriage equality, rather than the 5-4 nail-biter commonly predicted.
Did the Most Important Message Get Through?
While debating esoteric nuances of constitutional law, marriage equality attorneys repeatedly reminded the justices that they are not engaging in an academic exercise. The justices are deciding whether approximately 390,000 gay and lesbian couples in the United States and their 122,000 children will be afforded the same rights, responsibilities, and dignity unquestionably bestowed on families headed by heterosexual couples.
Solicitor General Donald B. Verrilli, arguing for equality on behalf of the U.S. government, offered this reminder:
“And what I would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable, untenable to suggest that they can be denied the right of equal participation in the institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equal. Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.”
If the justices heard nothing else during the oral arguments, let’s hope they heard that.