TWO VIEWS
“To expand the definition (of marriage), to redefine the definition, and then to suggest that other states that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the state’s ability to self-govern.”
Joseph Whalen, associate solicitor general for Tennessee
“In terms of the question of who decides, it’s not about the court versus the states. It’s about the individual making the choice to marry and with whom to marry, or the government.”
Mary Bonauto, an attorney representing same-sex couples in the case
LANDMARK RULINGS
A look at the major gay rights cases decided by the Supreme Court:
Baker vs. Nelson, 1972
The first Supreme Court gay marriage ruling was just a sentence long, saying that the appeal of a gay couple from Minnesota who had been turned down for a marriage license “is dismissed for lack of a substantial federal question.”
Bowers vs. Hardwick, 1986
The justices by a vote of 5-4 upheld a Georgia law outlawing sodomy. The case involved a Georgia bartender, Michael Hardwick, who was arrested on suspicion of having oral sex with another man in Hardwick’s bedroom. The justices said the constitutional right of privacy did not extend to homosexual sodomy.
Romer vs. Evans, 1996
In a 6-3 decision that became the precursor for later gay marriage rulings, the justices struck down a Colorado voter initiative that said no homosexual could be protected from discrimination based on his or her sexual orientation.
Boy Scouts of America vs. Dale, 2000
The court ruled that the Boy Scouts had a constitutional right to exclude openly gay Scout masters based on the Scouts’ freedom of association. The 5-4 ruling reversed a decision of the New Jersey state courts.
Lawrence vs. Texas, 2003
The court, in an emotional opinion by Justice Anthony M. Kennedy, overturned Bowers vs. Hardwick, ruling that a Texas sodomy law violated the constitutional rights of liberty and privacy. The 6-3 decision overturned the convictions of two gay men arrested in their apartment in Houston.
U.S. vs. Windsor, 2013
In a 5-4 decision that has become the basis for dozens of federal court rulings striking down gay marriage bans, the justices struck down a key part of the federal Defense of Marriage Act. The court said the federal government could not deny benefits to legally married gay couples.
Tribune News Service
Hollingsworth vs. Perry, 2013: The justices upheld a lower court ruling invalidating California’s gay marriage ban, Proposition 8. While the 5-4 decision made gay marriage possible for Californians, it was a technical ruling that marriage opponents did not have standing to appeal and so did not apply to other states.
Pivotal Justice Anthony Kennedy, whose vote could decide the same-sex marriage issue for the nation, did not tip his hand Tuesday in historic arguments at the Supreme Court. But Kennedy’s record on the issue could give encouragement to gay and lesbian couples.
As advocates and protesters staged demonstrations outside, the author of the court’s three prior gay rights rulings talked about the touchstones of dignity and concern for children in same-sex households that drove his favorable earlier opinions.
But he also expressed concern about changing the definition of marriage from the union of a man and a woman, a meaning that he said has existed for “millennia-plus time.”
“It’s very difficult for the court to say ‘we know better’ ” after barely a decade of experience with same-sex marriage in the United States, Kennedy told Mary Bonauto, a lawyer representing same-sex couples.
The 78-year-old justice’s likely role as a potentially decisive vote was reinforced during arguments that lasted 2½ hours in a rapt courtroom and appeared to divide the court’s liberal and conservative justices over whether the Constitution gives same-sex couples the right to marry. Those couples can do so now in 36 states and the District of Columbia, and the court is weighing whether gay and lesbian unions should be allowed in all 50 states.
“Same-sex couples say, of course, ‘We understand the nobility and the sacredness of marriage. 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,’ ” Kennedy said in an exchange with lawyer John Bursch, who was defending the state marriage bans
Later, Kennedy also seemed concerned about adopted children in same-sex households if only one partner is considered a parent.
“Under your view, it would be very difficult for same-sex couples to adopt those children,” Kennedy said.
Tuesday’s arguments offered the first public indication of where the justices stand on the dispute over whether states can continue defining marriage as only the union of a man and a woman, or whether the Constitution gives gay and lesbian couples the right to marry. In the court’s last look at same-sex marriage in 2013, the justices struck down part of the federal law prohibiting recognition of gay marriages. Federal courts with few exceptions have relied on Kennedy’s opinion in that case to invalidate gay marriage bans in state after state.
The court divided 5-4 in that case, with the liberals joining Kennedy in the majority. Their questions on Tuesday suggested they would vote to extend same-sex marriage nationwide in an expected June ruling, while conservative justices’ questions and comments were much more skeptical.
Justices Stephen Breyer and Sonia Sotomayor both said marriage was a fundamental right and a state would need a truly compelling reason to deny it to a class of people.
Bursch argued repeatedly that states could prohibit same-sex unions because marriage always has been about biological bonds between parents and their children. If the definition of marriage is changed, Bursch said, “then adults could think, rightly, that this relationship is more about adults and not about the kids.”
s.
Chief Justice Roberts said gay couples seeking to marry are not seeking to join the institution of marriage. “You’re seeking to change what the institution is,” he told Bonauto.
Roberts also said people would be more accepting of change if it was achieved through the democratic process, rather than imposed by courts. Only 11 states have granted marriage rights to same-sex couples through the ballot or the legislative action. Court rulings are responsible for all the others.
Yet the chief justice also questioned the arguments by Kentucky, Michigan, Ohio and Tennessee, four of the 14 remaining states that allow only heterosexual marriage. Those four had marriage bans upheld by the federal appeals court in Cincinnati in November, the only federal appeals court that has ruled in favor of the states since the Supreme Court 2013 ruling..
“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. Why isn’t that a straightforward question of sexual discrimination?” he asked.
The session was interrupted once by a protester who yelled that supporters of gay marriage “will burn in hell.” He was removed by security.
In the last part of the session, devoted to whether states have to recognize same-sex marriages from elsewhere, both Kennedy and Roberts directed skeptical questions to a lawyer for same-sex couples, Douglas Hallward-Driemeier.
Why should one state “have to yield” in recognizing a marriage from another state? Kennedy asked.
And Roberts suggested that states’ rights would be undermined if residents of states that forbid same-sex unions could get married elsewhere, then return home and demand recognition.
“One state would basically set the policy for the entire nation,” he said.
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