Last week, the Supreme Court heard oral arguments in the case of Obergefell v. Hodges, which consolidated four cases for review.
The oral arguments presented two questions: first, if the 14th Amendment’s Equal Protection Clause mandates that states allow gay couples to wed; and second, if the 14th Amendment requires a state that hasn’t legalized same-sex marriage to recognize a same-sex marriage that was performed and licensed in a state that does.
If the first question is answered in the affirmative, the second question is moot.
The attorneys for the petitioners, four gay couples who were wed in states that permit same-sex marriage but now reside elsewhere, argued that a prohibition on gay marriage violates the 14th Amendment because it undermines a “basic constitutional commitment to equal dignity.”
During oral arguments, Chief Justice John Roberts noted that until 12 years ago, all dictionaries defined the institution of marriage as between a man and a woman. Justice Samuel Alito built on the idea when he observed that a prohibition on gay marriage cut across history, societies and nations — even among societies that condoned homosexuality. He asked if that definition of marriage arose from a “rational and practical purpose” or if those societies “were all operating independently based solely on irrational stereotypes and prejudice?”
Both justices implicitly distinguished gay marriage from bans on interracial marriage or interreligious marriage by pointing to the millennia-long, universal opposition to the former.
The attorneys for the gay couples focused on the lack of a connection between procreation and marriage with heterosexual relationships, stating that heterosexual couples can procreate naturally, adopt, use artificial technology to conceive or not parent at all.
Several liberal justices built on this idea and expressed skepticism toward the conflation of marriage and procreation.
Neither side noted that every child is conceived through the union of male and female gametes, even those conceived artificially.
During both phases of oral arguments, both liberal and conservative justices asked the petitioners to distinguish their argument from one that would mandate a constitutional right to polygamy, marriages between close relatives or marriages between adults and minors.
While some justices will use this logic to uphold the state laws limiting marriage to the traditional one man and one woman, the others may write a narrower opinion in favor of the petitioners but designed to exclude polygamous or incestuous marriages.
The crux of the defense of the state bans on same-sex marriage is that the people, through the democratic process, have the right to decide whether marriage is about raising children in an optimal environment (i.e., with both biological parents), or about love and affection between adults.
Several justices argued that even if the first definition prevails, that it does not logically exclude same-sex couples, as allowing more people access to marriage will not harm other people’s marriages.
The respondents argued that such harmful social changes would be slow but inevitable: “[I]f marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage,” one attorney argued.
The second portion of the oral arguments focused on whether or not a state could refuse to recognize a same-sex marriage that was performed and licensed in another state.
The strongest argument against allowing states to decline to recognize same-sex marriages came from Justice Antonin Scalia’s questions about the Full Faith and Credit Clause.
Other justices picked up on this and asked when it was proper or not for a state to fail to recognize the judgements, records and public acts of sister states.
Although Scalia is a reliably conservative voice on the court, he said that he was glad to “quote a portion of the Constitution that actually seems to be relevant” — a cheeky comment but one indicating that he expects the respondents to pass a high bar on the second question.
Alito provided the strongest rebuttal argument. He stated that the most dramatic difference between modern marriage laws is whether the state permits same-sex marriage. Through his questioning of the petitioner’s attorneys, he explained that the second biggest difference in modern marriage laws is the minimum age of matrimony — and states have a constitutional right to not recognize the marriages of minors that occurred in other states. Implicitly, states could constitutionally refuse to recognize marriages based on an even more dramatic difference.
Justice Anthony Kennedy’s lone question during this phase of oral arguments was to ask why a state should have to yield in its beliefs about same-sex marriage simply because another state addressed the issue differently.
Kennedy was the swing vote and author for United States v. Windsor, which struck down the Defense of Marriage Act on federalism grounds. In that case, a federalism rationale tipped against traditional marriage, but in this case, it would favor states that want to retain traditional marriage. Kennedy’s questions indicate that he might continue to let states decide the issue.
Bridget L. Fay is an attorney, a former chemical engineer and a member of Women Speak for Themselves, a grassroots group whose mission is to offer a more thoughtful and complete version of women’s freedom.