Nine hard-hitting questions posed in landmark gay-marriage case

April 29, 2015

Supreme Court LGBTThe nine members of the U.S. Supreme Court do not shy away from asking uncompromisingly direct and honest questions, and yesterday’s oral arguments in one of the biggest cases of the year were evidence of that.

Before we get into the Court’s inquiries, here is some background information on the case: Four lawsuits challenging the constitutionality of the same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee have been consolidated into one case: Obergefell v. Hodges.

The Supreme Court agreed to rule on two issues: whether the Constitution requires states to grant marriage licenses to same-sex couples, and whether states are required to recognize same-sex marriages performed in other states that allow them.

Obergefell v. Hodges is monumental as it could put an end to the same-sex marriage debate, once and for all.

Even though the public’s perception of gay marriage has shifted dramatically in a relatively short amount of time, with six-out-of-10 Americans now supporting it, the Supreme Court appeared unwilling to jump on the bandwagon without first exercising their due diligence.

Here are nine of the more difficult questions that were raised during yesterday’s 2.5 hours of debate:

Why should it be up to these nine Justices to change the traditional definition of marriage that “has been with us for millennia?” –  Justice Anthony Kennedy

Can the impact of gay marriage really be understood since it is so new? – Justice Anthony Kennedy

Why should the court decide to change the “basic definition” of marriage? Chief Justice John Roberts

If the state has a procreative interest in marriage, why is a 70-year old couple allowed to wed when they obviously aren’t going to have children? – Justice Ruth Bader Ginsburg

Is the only reason to deny same-sex couples the right to marry because that’s the way people “have always done it” … or is it “purely a religious reason”? – Justice Stephen Breyer

“Do you know of any society, prior to the Netherlands in 2001, that permitted same-sex marriage?” – Justice Antonin Scalia

“Why cannot those states at least wait and see whether in fact [permitting same-sex marriage] in the other states is or is not harmful to marriage?” – Justice Stephen G. Breyer

“How does withholding marriage from one group — same-sex couples — increase the value to the other group?” – Justice Sonia Sotomayor

“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?” Chief Justice John Roberts

That last question, The New York Times predicted, could be used by the Chief Justice as a way to side with the four liberal justices on the issue based on more modest sex-discrimination grounds.

It has also been suggested by many that it will be Justice Kennedy who will author the majority decision in the case in support of same-sex marriage as he did in 2013’s United States v. Windsor, which struck down the federal ban on same-sex marriage.

In that case, Justice Kennedy reasoned that the federal ban on same-sex marriage was unconstitutional because it denied same-sex couples the “rights and responsibilities” afforded by federally-recognized marriage. He could take a similar approach in Obergefell v. Hodge.

However, it’s likely still too soon for the nation’s powerful gay rights movement to celebrate because Justice Kennedy has been known to flip-flop on issues in the past, as this Boston Herald column reminds us.

And it is certainly possibly that the Court could decide to side-step the issue by requiring states to recognize same-sex marriages that were performed in the states that allow them but falling short of making same-sex marriage a constitutional right, as this piece suggested.

Ultimately, even the savviest of Supreme Court analysts will have to wait until June to know how this landmark case will be decided.