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In 2-1/2 hours of arguments, the nine black-robed justices
peppered lawyers on both sides of the issue with questions in the
landmark case centering on a contentious social issue, but appeared
split as they often do along ideological lines.
Kennedy, a conservative who often casts the deciding vote in close
cases and has a history of backing gay rights, posed tough questions
to both sides but seemed to give hope to gay marriage advocates by
stressing the nobility and dignity of same-sex couples.
At one point during the arguments in the decorous white-marble,
crimson-draped courtroom, a protester shouted that the justices
would "burn in hell" if they backed gay marriage. He was dragged by
police screaming from the packed courtroom and was later charged
with several misdemeanors.
The court's four liberal justices seemed willing to vote in favor of
gay marriage, while the court's conservatives, including Chief
Justice John Roberts, appeared inclined to back the right of states
to restrict the definition of marriage.
During the first part of the argument, focusing on the question of
whether there is a constitutional right for gay couples to marry,
Kennedy challenged one of the key assertions made by states that ban
gay marriage: that same-sex couples do not have the same bonds with
their children as straight couples.
"That was very interesting, but it's just a wrong premise," Kennedy
told John Bursch, the lawyer arguing in favor of state bans.
Kennedy told Bursch his argument "assumes that same-sex couples
cannot have the more noble purpose" shown by opposite-sex couples
when marrying. Kennedy also questioned Bursch's argument that
marriage is not a "dignity bestowing" right.
Kennedy repeatedly used similar language in a 2013 ruling he wrote
in which the court struck down a federal law that denied federal
benefits to same-sex married couples.
The first part of the arguments focused on whether the
Constitution's guarantees of due process and equal protection under
the law mean states must allow gay couples to marry. The second
concerned whether states must recognize same-sex marriages performed
in other states.
Kennedy asked just one question during the hour-long second part of
the argument. That could indicate he did not think the court would
need to decide that matter because it would rule that gay couples
have a right to marry nationwide.
Earlier, Kennedy sounded conflicted about the centuries of history
in which marriage has been limited to opposite-sex couples.
"This definition has been with us for millennia, and I think it's
very difficult for this court to say, oh well, we know better,"
Kennedy said.
A lively crowd estimated at more than 1,000 people, with those
favoring gay marriage outnumbering those opposed, gathered outside
the white marble courthouse as the justices heard arguments in the
case, known as Obergefell v. Hodges.
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RULING DUE IN JUNE
The justices are due by the end of June to deliver what promises to
be their most anticipated ruling of the year.
The arguments centered on gay marriage bans in Kentucky, Michigan,
Ohio and Tennessee, four of the 13 states that currently prohibit
it.
Public support for gay marriage has steadily grown in recent years.
Before it became legal in Massachusetts in 2004, gay marriage was
not permitted in any state. It is now allowed in 37 states and
Washington, D.C.
Roberts gave no sign he is likely to join the liberals. He, like
Kennedy, stressed the swift changes in attitudes toward gay marriage
and questioned whether it was the court’s role to decide it once and
for all.
"Closing of debate can close minds," Roberts said. Roberts also
seemed unwilling to require states to recognize marriages that take
place in other states.
Mary Bonauto, the lawyer arguing in favor of same-sex marriage,
faced tough questions from conservative justices.
Justice Antonin Scalia questioned whether clergymen who oppose
same-sex marriage would be required to officiate over ceremonies.
Justice Samuel Alito asked whether, in theory, polygamous
relationships or marriages between siblings could be allowed if the
court embraced same-sex marriage.
Liberal Justice Elena Kagan, who came across as the court's
strongest gay marriage supporter, questioned the notion that
restricting marriage to opposite-sex couples would help encourage
stable environments for children. She said many gay couples want to
adopt children. If gay marriage is allowed, more people would be
able to adopt, Kagan said.
"More adopted children and more marital households, whether same sex
or other sex, seems to be a good thing," Kagan said.
Opponents say same-sex marriage legality should be decided by
states, not judges. Some opponents argue it is an affront to
traditional marriage between a man and a woman and that the Bible
condemns homosexuality.
President Barack Obama's administration argued on the side of
same-sex marriage advocates. He has said he hopes the court issues a
ruling preventing states from banning gay marriage.
(Additional reporting by David Ingram, Joan Biskupic and Elvina
Nawaguna; Editing by Will Dunham)
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