The Supreme Court is still hearing argument in a consolidated case, Obergefell v. Hodges, about whether the Fourteenth Amendment guarantees the freedom to marry for gay persons. The first part of the audio of that argument has been made available. Although Towleroad will be analyzing the oral argument more comprehensively in the days to come, here are some initial reflections.
Many of the questions focused on the fact that gays marrying is a new thing, especially with respect to the thousands of years during which marriage was an exclusively opposite-sex institution. The questions to Mary Bonauto (right) came predominantly from Justices Ginsburg, Kennedy, and Alito.
Justice Kennedy asked several questions in which he admitted that, in his head, when thinking about this issue, he kept going back to the word "millennia." Marriage has been for a man and a woman for a long time. Justice Alito spoke about how gays marrying was a totally new thing. They wanted to know how it is okay for the Court to make such a swift change.
Ms. Bonauto let the first 15 minutes of her argument get away from her. She failed to answer the question directly, a reality that forced Justice Breyer, a likely vote in favor of marriage equality, to jump in and demand that she answer the question directly. Sometimes that happens; he was helping.
Ultimately, Ms. Bonauto noted that there is nothing wrong with the Court making a decision now. The Fourteenth Amendment says all "persons," and it doesn't matter how long some state of affairs has existed. If, per our understanding of equality demands today, discrimination exists, the Fourteenth Amendment demands it be erased. What's more, any suggestion that the states should be allowed to decide for themselves and "wait and see" how same-sex marriage in some states affects the institution of marriage, Ms. Bonauto noted that the desire to "wait and see" has never been a legitimate justification for continued discrimination.
This first part of the argument seemed rough for Ms. Bonauto. She was peppered with questions from a hot bench, and received only two softballs from Justice Ginsburg. Don't be disheartened. Justice Breyer often chimes in to force oralists to stick to the questions, and Ms. Bonauto was just getting started.
Ms. Bonauto said that states can always jump in to say that polygamists are different. There are a host of social, health policy, and other reasons why more than two people in a union might be detrimental to one or several persons in that union, none of which are at issue here and none of which exist between two committed, loving persons of the same sex.
This argument is a canard. This case is not about polygamy or polyamorous relationships. The case before the Court is whether there is any justification for what is obvious discrimination. But these arguments keep popping up because they are ways to scare the population who has less exposure to gay persons.
Justice Scalia disliked the idea of constitutionalizing the issue because, for example, if the Court says the Constitution guarantees a right for gays to marry, how could that not force a minister to marry two men? Justice Kagan said that nondiscrimination laws have never forced that to happen, but Justice Scalia was concerned about saying that once the Constitution weighs in, there couldn't be exceptions. We can always make exceptions to state laws, not to constitutional requirements.
Justice Kagan stepped in again. She noted that many rabbis refuse to marry a Jew marrying a non-Jew and yet the Constitution bans discrimination on the basis of religion. Justice Scalia sat silently after that.
A protester started screaming at this point. He was quickly escorted out. Mr. Donald Verrilli, Solicitor General of the United States, comes next for the plaintiffs.
CONTINUE WITH PART 2 OF THE INITIAL ANALYSIS HERE….
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Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.