As millions of gay, lesbian and bisexual Americans await the Supreme Court's final decision on the long-debated issue of same-sex marriage, the general mood of the court's members might best be summed up by this remark by Justice Anthony Kennedy: "It's very difficult for the court to say, 'Oh well, we know better.'"
Difficult is right. Throughout the oral arguments for Obergefell v. Hodges, the case that could determine whether the 14th Amendment extends the right to marry to same-sex couples, SCOTUS appeared deeply divided along predictable ideological lines. Throughout the two and a half hours of arguments, the justices repeatedly clashed on issues ranging from the history of marriage to biological procreation to the role of the democratic process in awarding civil rights.
Chief Justice John Roberts expressed concern about changing the definition of a thousand-year-old institution; Justice Samuel Alito pressed the issue of polygamy (between four hypothetical lawyers); Justice Antonin Scalia tossed out that the Supreme Court's enshrinement of same-sex marriage would force clergy to perform gay weddings, an assertion followed by a swift tag-team takedown by Justices Elena Kagan and Sonia Sotomayor.
These key moments indicate the importance of Tuesday's argument — and where the highest court in the land may end up falling on the issue of the great civil rights issue of our time.
1. "Changing the definition of marriage"
Questions by two of the most influential justices seem fixated on the relative "newness" of same-sex marriage. Roberts, widely seen before the arguments as a potential swing justice, didn't give supporters of same-sex marriage a great first impression with his initial comment on the matter. After Mary Bonauto, a gay rights pioneer who argued the first successful same-sex marriage case in the country in 2003, described states' refusal to allow same-sex couples to marry a "stain of unworthiness," Roberts interjected that "every definition [of the institution of marriage] that I've looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable."
"You're not seeking to join the institution," he continued. "You're seeking to change what the institution is."
Kennedy, who has crafted every one of the most important written opinions in gay rights cases since 1996, (Bonauto cited his opinion in Lawrence v. Texas within three minutes of the arguments beginning), also appeared troubled by the idea of "redefining" marriage. The definition of marriage as being between a man and a woman, according to Kennedy, "has been with us for millennia, and it's very difficult for the court to say, 'Oh well, we know better.'"
2. Justice Ruth Bader Ginsburg drops the feminism bomb.
Ginsburg continued her tradition of being the world's favorite octogenarian when she argued against the notion that the concept of marriage has remained static for, in Kennedy's words, "millennia." When questioning former Michigan Solicitor General John J. Bursch, who argued on behalf of the states declining to recognize same-sex marriages, Ginsburg asserted that the definition of marriage has changed constantly — and for the better. "Marriage today is not what it was under the common law tradition, under the civil law tradition," she said. "Marriage was a relationship of a dominant male to a subordinate female ... Would that be a choice that a state should be allowed to have?"
The justice also noted in the arguments that early American marriage was a "dominant and a subordinate relationship" between a man and a woman. The more egalitarian modern definition of marriage wasn't recognized by the Supreme Court until 1980 in Kirchberg v. Feenstra, when Louisiana's so-called "head-and-master" laws were ruled to be gender discrimination. Ginsburg leaves open the suggestion that same-sex marriage recognition would comport with the idea of marriage as an ever-evolving institution, and that clinging to the one-man-one-woman formula will someday seem as archaic as endorsing chattel marriage.
3. Disorder in the court
Shortly after the plaintiff's first round of arguments was completed, an older man with white hair and a beard rose from the gallery and screamed, "Homosexuality is an abomination!" As security scrambled to remove the man from the courtroom, he continued inaudibly about the disaster that would befall America if the Supreme Court ruled in favor of marriage equality. As the man was removed, Roberts quipped, "Freedom of expression!" (We would have gone with "Order in the court.")
In an era when a congressman can scream "You lie!" at the president of the United States during a joint session of Congress, the Supreme Court is one of the few places left in the federal government where decorum is valued above all else. Its emphasis on formality (it has an 84-page rulebook for attorneys and visitors) makes the rare disturbance in Tuesday's hearing even more jarring. But while the man's outburst was likely distressing to any number of the 31 plaintiffs assembled at the Supreme Court, it also functioned as a nice reminder to justices skeptical of same-sex marriage of the company they are keeping.
4. SCOTUS evokes interracial marriage.
For many, Obergefell v. Hodges holds the same potential significance for gay, lesbian and bisexual Americans that Loving v. Virginia held for interracial couples. The unanimous Loving decision held that bans on marriage between people of different races were a violation of the 14th Amendment's due process protections — the same grounds on which marriage equality advocates are hoping to overrule state bans on same-sex marriage.
Kennedy fed into that comparison with his first line of questioning, casually mentioning that "it was about the same time between Brown [v. Board of Education] and Loving as between Lawrence and this case, so about ten years. That's time for the scholars and the commentators and the bar and the public to engage in it."
Seemingly at Kennedy's suggestion, Bonauto invoked SCOTUS' decision in Loving v. Virginia. At the time of that decision, 80% of the public sided with Virginia in resisting interracial marriage. "That was a 'profound change' at the time," she said, that needed to be made.
Kagan also laid the groundwork for legal comparisons between Obergefell and Loving. While questioning Bursch, she emphasized that Loving was "a case which shows how liberty and equality are intertwined." Over the course of history, Kagan said, SCOTUS has ruled that "there's a right to marry, that is fundamental and that everybody is entitled to it unless there's some good reason for the state to exclude them. So why shouldn't we adopt the exact same understanding here?"
5. "The marriage of four lawyers" (and incest)
Nothing has haunted the imagination of the anti-marriage equality more than the specter of polygamy — the idea that allowing two men or two women to marry will inevitably lead America down a "slippery slope" where three men, or four women, or five men and a box turtle can get married. Alito added one more horrifying aspect to the hypothetical by posing it as the union of four lawyers.
"These are four people, two men and two women ... and let's say they're all consenting adults, highly educated. They're all lawyers," he said, describing the union of the damned. "What would be the logic of denying them the same right?"
The lawyers supporting marriage equality whiffed it a bit on this question, attempting to describe the union of more than two people as a "fundamental" change in the definition of marriage, rather than an "evolutionary" one. Bonauto also couched the state's hypothetical interest in preventing polygamous marriages in the ideas of "consent and coercion." It's a sound response, but misses the obvious opportunity to describe gay, lesbian and bisexual Americans as a distinct class of people. Plenty of people are born gay, lesbian or bisexual, but in the words of Jon Stewart, "saying 'I gots to get laid by different women that I'm married to'" is not a biological condition.
Alito also won bonus points for asking the most offensive question during the proceedings, when he asked Solicitor General Donald B. Verrilli about the hypothetical marriage of two opposite-sex siblings who have lived together for 25 years. The sibling couple "share[s] household expenses and household chores in the same way" as a same-sex couple: "They care for each other in the same way — is there any reason why the law should treat the two groups differently?" Verrilli, instead of pointing out that comparing same-sex couples to inter-sibling incest is offensive even for a Supreme Court justice, maturely responded that marriage is about "an enduring bond between two people," not household chores.
6. The "procreation" argument is DOA.
In the brief submitted to SCOTUS by the state of Michigan relating to the sub-case DeBoer v. Snyder, lawyers arguing against a constitutional right to same-sex marriage state that the government has a "need to regulate male-female relationships and the unique procreative possibilities of them." The brief relies upon the idea that the institution of marriage exists explicitly, and even solely, to foster the propagation of the human species.
The more liberal justices immediately seized upon this position once Bursch began speaking. "When you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad," Bursch said, "that has consequences."
To which Sotomayor coolly responded, "Marriage doesn't do that on any level. How many married couples [exist in which] fathers walk away from their children? So it's not that the institution alone does it and that without it that father is going to stay in the marriage. He made a choice ... How does withholding marriage from one group, same-sex couples, increase the value to the other group?"
7. A matter of "dignity"
Toward the end of the oral arguments, Bursch re-emphasized Michigan's assertion that the institution of marriage was never meant to be about bestowing dignity, but rather to foster the procreative nature of heterosexual couples. This drew a sharp response from Kennedy: "Same-sex couples say, 'Of course we understand the nobility and the sacredness of marriage. We know we can't procreate, but we want the other attributes of it in order to show that we too have a dignity that can be fulfilled.'"
It was the closest Kennedy came to tipping his cards. The justice is nicknamed "the Decider" for his frequent role as the winning vote in the Supreme Court's most important split decisions, and he may have authored the opinions of SCOTUS' most important gay rights cases. Up until this point, his wavering on the historic nature of changing the definition of marriage after "millennia" had troubled Supreme Court watchers who viewed him as the linchpin for nationwide marriage equality. By telling Bursch that Michigan's law "assumes that same-sex couples could not have the more noble purpose," a "dignity that can be fulfilled," Kennedy may have given supporters of same-sex marriage the signal they were waiting for.