WASHINGTON — Supreme Court justices broke along familiar ideological lines Tuesday as they considered whether same-sex couples enjoy a constitutional right to marry, with Justice Anthony Kennedy in a familiar role as the apparent decider in a landmark gay rights case.
Kennedy, whose vote could decide the same-sex marriage issue for the nation, did not tip his hand in historic arguments. But his record on the issue could give encouragement to gay and lesbian couples.
He asked tough questions of both sides.
Why should nine unelected justices change the definition of marriage as only between a man and a woman when that definition has existed for “millennia?” Kennedy asked attorney Mary Bonauto, who is representing gay couples in the case. Kennedy also questioned John Bursch, representing Michigan and other states with same-sex marriage bans, about their procreation-centered view of marriage, asking, Why do same-sex couples not deserve the “same ennoblement” of their relationships that others receive?
Proponents of same-sex marriage are challenging laws from Michigan, Ohio, Kentucky and Tennessee. The justices are considering two questions: whether the Constitution requires states to issue marriage licenses to same-sex couples and whether states must recognize same-sex marriages performed in other states where they are legal.
Bonauto argued that limiting marriage to a man and a woman deprives gay and lesbian couples of this valued right. To deny it leaves them with a “stain of unworthiness,” she said.
She received a boost from Justice Ruth Bader Ginsburg, who pointed out that legal views of marriage have changed to make them more “egalitarian.”
But Bonauto faced repeated questions about the historical nature of marriage as a bond between genders — which Justice Stephen Breyer described as “the law everywhere for thousands of years.”
“Suddenly,” Breyer said, “you want nine people outside the ballot box to require states to change (this).”
Recognition of such a constitutional right would mark the culmination of an unprecedented upheaval in public opinion about gay rights and a dramatic change in the nation’s jurisprudence. Same-sex marriages were practically unheard of in the nation until a Massachusetts court decision cleared the way for unions there just a dozen years ago.
A court decision is expected in late June.
Now, more than 70 percent of Americans live in states where same-sex couples are allowed to marry, according to estimates.
A slim majority of the court in 2013 said that a key portion of the federal Defense of Marriage Act — withholding recognition of same-sex marriages — was unconstitutional and in a separate case allowed same-sex marriages to resume in California.
Since then, courts across the nation — with the notable exception of the Cincinnati-based federal appeals court, which left intact the restrictions in the four states at issue — have struck down
state prohibitions on same-sex marriage, many passed by voters in referendums.
Dozens of lower-court judges nationwide have read Kennedy’s DOMA opinion, U.S. vs. Windsor, — in which he was joined by Justices Ginsburg, Breyer, Sonia Sotomayor and Elena Kagan — to mean that state bans violate constitutional rights as well.
Most of the questions from conservative justices appeared skeptical of gay-marriage arguments.
Chief Justice John Roberts said gay couples seeking to marry are not seeking to join the institution of marriage.
“You’re seeking to change what the institution is,” he said to Bonauto.
Roberts also said people would be more accepting of change achieved through the democratic process, rather than imposed by courts. Only 11 states have granted marriage rights to same-sex couples through the ballot or the legislature. Court rulings are responsible for all the others.
Yet the chief justice also questioned the states’ argument.
“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. Why isn’t that a straightforward question of sexual discrimination?” he asked.
The combined cases now before the Supreme Court are Obergefell vs. Hodges.
The Associated Press contributed to this report.
