The Supreme Court gay marriage arguments: What the justices revealed — quote by quote
A rainbow-colored flag flies in front of the Supreme Court on Monday, the day before the court heard arguments on the constitutionality of state bans on same-sex marriage. (Andrew Harnik/AP Photo)
In the same-sex-marriage oral arguments at the Supreme Court on Tuesday, eight of the justices revealed their personalities and their very different approaches to marriage equality in particular and the Constitution in general. What follows are the most revealing quotes, in order of seniority, from each of the justices who spoke at the argument (Justice Thomas was silent), along with their central concern and contribution to the debate.
Chief Justice Roberts has long been troubled by the idea that courts might short-circuit a democratic debate over marriage equality by imposing a constitutional right to marry by judicial fiat. In his dissent from the Windsor case in 2013, he wrote that he was reluctant to “tar the political branches with the brush of bigotry” without convincing evidence that a law’s “principal purpose was to codify malice.” He might vote to uphold same-sex-marriage bans on the grounds that the people, not judges, should decide the future of marriage.
Roberts also hinted that same-sex-marriage bans might be vulnerable as a form of sex discrimination. “I’m not sure it’s necessary to get into sexual orientation to resolve the case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?” Still, a majority of the court seems more interested in striking down the bans as a violation of liberty, equality, and dignity, and it would be surprising if Roberts joined majority opinion emphasizing sex discrimination.
Justice Scalia was especially troubled by the possibility that ministers might be required to conduct same-sex weddings that violated their religious convictions. Some commentators seized on his question as evidence that he believes the constitutional recognition of same-sex marriage is inevitable and wants to engage in damage control. Justice Kagan responded that rabbis at the moment are not required to marry Jews and non-Jews. She spoke from experience, having had to persuade her own New York City rabbi to conduct his first bat mitzvah after she turned 12.
Since the Lawrence decision in 2003, Justice Kennedy has insisted that laws disadvantaging gays and lesbians violate their dignity and their constitutional rights to liberty and equality. Kennedy’s focus on dignity has been so influential in lower-court decisions that lawyers on both sides referred to dignity no fewer than 16 times. Kennedy’s 2003 opinion emphasizing the dignity of LGBT couples led Scalia to predict that the decision would inevitably lead to the end of bans on same-sex marriage, despite Kennedy’s claims to the contrary. Now Scalia’s dissent looks especially prescient.
Justice Ginsburg has been described as the Thurgood Marshall of the women’s movement, and she invoked her experience as a litigator for women’s rights to question the conservative justices’ claim that allowing gays and lesbians to marry would transform the definition of marriage. In fact, Ginsburg argued, the definition of marriage was transformed after the women’s movement led to the demise of laws that treated wives as the property of their husbands. Because marriage has, in recent years, become increasingly inclusive, Ginsburg suggested, gays and lesbians deserve the same equal treatment as women and other previously disadvantaged groups.
Justice Breyer’s question surprised some same-sex-marriage proponents, who have counted him a reliable vote on their side. In fact, he seems to have been testing the thesis of his book “Active Liberty,” which argues that courts should generally defer to democratic decision makers unless fundamental rights are being infringed. Breyer’s ultimate vote for same-sex marriage seems implicit in his subsequent observation: “After all, marriage is about as basic a right as there is; that the Constitution and Amendment 14 does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law; and that to take a group of people where so little distinguishes them from the people you gave the liberty to, at least in terms of a good reason not to, and you don’t let them participate in this basic institution … that violates the 14th Amendment …”
Justice Alito is a history scholar who has eloquently argued for the preservation of tradition. He noted that ancient Greek philosophers, such as Plato, wrote approvingly of same-sex relationships, even though the ancient Greek city-state did not recognize same-sex marriage. Alito, who often asks the hardest questions at oral argument, went on to ask why, if marriage were a fundamental right, four people — “let’s say they’re all consenting adults, highly educated. They’re all lawyers” — could be denied the right to marry and form a single union. The lawyer’s response — that four lawyers were unlikely to consent to this relationship — didn’t seem to satisfy him.
More than any of the justices, Justice Sotomayor focused on what she identified as the basic question of whether the right to marriage is a fundamental right. If so, she said, it had to be extended to all citizens on equal terms. Cutting through the abstractions about dignity or the legalistic debate about tiers of constitutional scrutiny, Sotomayor sought to provide a broad, basic framework for resolving the case in terms all citizens can understand.
Justice Kagan was skeptical of the empirical claims made by same-sex-marriage opponents: namely, that bans on marriage by gay people would encourage responsible procreation by straight people by emphasizing the connection between marriage and procreation. Kagan asked whether it would be constitutional for the state to deny marriage licenses to straight couples who said they didn’t want to have children. She also questioned the state’s claim that allowing same-sex marriage would harm traditional families. Kagan found it “inexplicable” that Ohio was suggesting adopted children would be better off if raised by married straight parents but not by married gay parents.
Predicting the outcome of a case by the questions asked at a Supreme Court oral argument is always hazardous, but based on their past constitutional positions, there seem to be at least five justices — Kennedy plus the liberals — who are ready to recognize some version of a right to same-sex marriage. For more analysis, listen to the National Constitution Center’s We the People podcast discussion of the same-sex-marriage oral arguments.
Jeffrey Rosen is president and CEO of the National Constitution Center and a law professor at George Washington University.