According to Mark Sherman of the Associated Press, the two issues to be decided are whether or not states can determine who is allowed to marry, and if states that do not permit same-sex marriage should be forced to recognize marriages made in states where it is permitted.
While most court watchers say the deciding votes will probably come from Justice Anthony Kennedy and Chief Justice John Roberts, neither man tipped his hand during questioning today.
Kennedy seemed to side with the fears of the conservative justices when he commented that marriage has been understood to be between one man and one woman for “millennia-plus time” while same-sex marriage has only been around for just over 10 years. He wondered whether or not the public and scholars needed more time to study the ramifications of such a change in the institution of marriage.
It's very difficult for the court to say 'We know better,'" Kennedy told Mary Bonauto, a lawyer representing same-sex couples.
But he also pressed attorney John Bursch, who is representing states that ban same-sex marriage, to explain how granting gay couples the right to marry would harm traditional marriages. Bursch said that if we remove child-rearing as the central reason for marriage, this would weaken parents' commitment to staying married for their children's sake if their own relationship was failing.
“Chief Justice John Roberts also directed questions to both sides that made it hard to predict where he will come down,” Sherman reports.
For instance, Roberts said gay couples seeking to marry are not seeking to join the institution of marriage but are rather "seeking to change what the institution is," he told Bonauto.
But also questioned the states’ argument when he asked, “If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. Why isn't that a case of sexual discrimination?"
Justices John Breyer, Sonya Sotomayer, Elena Kagan and Ruth Ginsburg all seemed to be in favor of same-sex marriage in all 50 states. Justices Scalia and Alito seemed against it. Justice Thomas said nothing during the arguments, which is his usual custom, but is expected to side with conservatives on the issue. That would leave the deciding votes up to Kennedy and Roberts.
The last part of today’s session was devoted to arguments about whether or not states should be forced to recognize same-sex marriages from elsewhere.
Chief Justice Roberts suggested that states’ rights would be undermined if residents of states that forbid same-sex unions could get married elsewhere, then return home and demand recognition. "One state would essentially set the policy for the entire nation," Roberts said.
Kennedy seemed to agree when he asked Douglas Hallward Driemeier, one of the lawyers for same-sex couples, “why should the state have to yield” in recognizing a marriage from another state.
The only dust-up in the morning’s proceedings came about 30 minutes into the arguments when a man suddenly jumped up and began shouting “Homosexuality is an abomination!” and had to be escorted out of the courtroom. Justice Scalia was quite amused by the scene and quipped, “It was rather refreshing, actually.”
Thus far, 36 states now allow same-sex marriage with only a few being decided by the people and most swept into law by the courts or the legislature.
A decision on the cases is expected in late June.
A full transcript of the arguments can be read here.
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