Tuesday, April 28, 2015

It's "Slow Anthony" Kennedy Day at the Supreme Court gay-marriage jamboree


WaPo caption: "Joe, left, and Frank Capley-Alfano in front of the U.S. Supreme Court on Tuesday. The couple, from Oakland, Calif., have been together for 15 years and were married in 2008."

by Ken

OMG, "Obergefell v. Hodges"? This is the designation for the agglomeration of cases bundled into the great Supreme Court same-sex-marriage test case, which we're going to have to cite unto, well, eternity? Oy! Is this maybe the justices' subtle way of discouraging us from talking about the case unot, you know, eternity?

Today, of course, was the day of the long-awaited oral arguments on the cases coming up from the appeals courts bearing on same-sex marriage. For present purposes I'm going to assume that you're up to date on the issues and the legal fault lines on the High Court (if not, there's a pretty good rundown of the history and politics of the issue in the Washington Post Barnes-Barbash piece we're going to be looking at in a moment), and that what you want to know is what the justices had to say and what it may tell us about the eventual decision that's expected in June.
Supreme Court shows split in hearing on historic in gay-marriage cases

By Robert Barnes and Fred Barbash
April 28 at 2:20 PM

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 M. Kennedy in a familiar role as the apparent decider in a landmark gay-rights case.

Kennedy asked tough questions of both sides. But it has worked out well in the past for gay rights supporters when Kennedy has been cast in the role of decider. He has written each of the court’s major rulings on the subject, including the 2013 decision striking down part of the federal law that refused to recognize same-sex marriage.

Look deep in his eyes . . .
And it will be debated between now and when the court renders its decision at the end of June which view will win out: Kennedy’s interest in protecting states’ rights or his sympathy for gay couples facing discrimination.

Why should nine unelected justices change the definition of marriage as only between a man and a woman when that concept has existed for “millennia?” Kennedy asked attorney Mary L. Bonauto, who is representing gay couples in the case.

On the other end, he questioned John Bursch, representing Michigan and other states with same-sex marriage bans, about their procreation-centered view of marriage. Why do same-sex couples not deserve the “same ennoblement” of their relationships that others receive? he asked.

But toward the end of the argument, Kennedy’s words sounded more like those of the opinions he has written.

“Same­-sex couples say, of course, we understand the nobility and the sacredness of the marriage,” Kennedy told Bursch. “We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”

The solemn, hushed nature of the proceeding was shattered by a protester who shouted that the Bible teaches that those who engage in homosexuality will “burn in hell for eternity.” He could be heard shouting for minutes even after security dragged him from the courtroom.

Proponents of same-sex marriage were first at the podium as they challenged 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.

Bonauto 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 G. 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].”

For the most part, however, it was the conservative justices with the sharpest questioning for Bonauto.

When she said the institution of marriage would not be harmed by gay couples being allowed in, Chief Justice John G. Roberts Jr. stopped her.

“You’re not seeking to join the institution, you’re seeking to change the institution,” he said.

Justice Samuel A. Alito Jr. asked if the definition of marriage was simply a commitment between loving consenting adults, how could a state withhold that from siblings, or two women and two men who decided to marry.

Justice Antonin Scalia said that if the decisions on marriage continue to be made democratically by the states, those states could make religious accommodations that would not be possible if there was a decision that same-sex marriage was a constitutional right.

Solicitor General Donald B. Verrilli Jr., arguing for the same-sex couples on behalf of the Obama administration, said many of the arguments were also made before the court in 1967 struck down state prohibitions on interracial marriage.

Withholding marriage from same-sex couples repeats the same discrimination, he said. “I don’t know why we’d want to repeat that history,” he continued.

The liberal justices repeatedly pressed Bursch about why opening marriage to same-sex couples would damage the states’ interests, which he defined as encouraging mothers and fathers to stay together to raise any children they might have.

“Nobody’s taking that away,” said Justice Sonia Sotomayor.

Heterosexual couples would have “the very same incentive to marry,” said Justice Ginsburg.

But Bursch said the states only had to prove that their reasons for limiting marriage to a man and a woman are “not so irrational that it’s unconstitutional.”

Roberts asked a question that neither side had pressed. If a woman wants to marry a man, she can. If a man wants to marry a man, he can’t. Why isn’t that sex discrimination? he wondered.

Roberts dominated the second argument, about whether states could be forced to recognize marriages performed in states where they were legal.

The question would be moot if the court declares a constitutional right, but the second argument lent force to the idea that it might be the chief justice’s preferred path, and could perhaps win a wider majority.

If states are forced to recognize same-sex marriages performed elsewhere, Roberts suggested, it would be “only a matter of time” before same-sex marriage settled in as a national norm. It would effectively allow “one state” or a minority of states to “set policy for the nation.”

At the same time, the Roberts line of questioning suggested he did not view that possibility with great alarm, at least as an alternative to a court decision holding that all states must permit same-sex marriages within their borders.

Isn’t it “quite rare for a state not to recognize” a marriage performed elsewhere? he asked.

He pointed out that recognizing a marriage performed elsewhere is “pretty straightforward” compared to a state allowing such marriages under its own law, suggesting it was not as much of an imposition.

Getting married “is one thing,” he said. But wasn’t allowing a marriage to exist that has been performed elsewhere just a matter of “applying domestic relations law,” he asked.
It may turn out, of course, that whatever decision isn't reached by "Slow Anthony" Kennedy being The Decider between two evenly arrayed Blocs of Four, but you never know -- and we certainly won't know until we know where Slow Anthony draws his lines on the various aspects of the case. Meanwhile, we've got Chief Justice Roberts asking questions, like the one about the applicability of sex discrimination to the question of same-sex constitutional rights, that suggest he may be looking for some sort of legal and constitutional loop-the-loop, perhaps one that would grant some at least of what the country seems ready to accept in terms of legalized same-sex marriage without the justices' actually having to declare that people have a constitutional right to it.

I'm assuming that Justice Clarence Thomas gave no indication of his thought process on the subject. But if there's anyone who doesn't have an excellent idea of how that process will play out, you must be new to this.

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At 4:23 PM, Anonymous Glenn Bateman said...

A very interesting article. I learned something new from it. Clarence Thomas has 'thought processes' about cases in front of the Supremes. All along I had the opinion that Clarence had Scalia tell him what to think and then cleared it with his wife Ginny to make sure it was consistent enough for the people funding her 'think tank'.

At 4:26 PM, Anonymous Anonymous said...

Justice Antonin Scalia said that if the decisions on marriage continue to be made democratically by the states, a number of states could move to refuse to recognize the marriage of his colleague Clarence and his wife Ginny. /s

At 6:22 PM, Blogger KenInNY said...

I would just note that, in part because he's normally so silent, it's easy to underestimate Justice Clarence. The linkage with Justice Nino doesn't come about because he takes his cue from him but because they do in fact generally agree on legal and constitutional matters, but as Justice Clarence's written opinions frequently show, he's in fact a good deal more radically conservative than Justice Nino.

And far from being dim, he's actually extremely smart. If he had any skill at, or perhaps simply interest in, influencing his fellow justices, he could have been a much more dangerous presence on the Court. But he genuinely believes the things he claims to believe, and seems content with that.



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