By Marcia Coyle and Tony Mauro, From The National Law Journal

Kennedy is key in same-sex marriage cases.

During historic arguments over same-sex marriage in the U.S. Supreme Court, the justices cautiously explored the ramifications of requiring states to license those unions. But in the end, as so often has been the case, the answer to this major civil rights question may rest with one justice: Anthony Kennedy.

The justices heard separate argument sessions on two questions: the “marriage” question—whether the 14th Amendment requires states to license same-sex marriages; and the “recognition” question—whether that amendment requires states to recognize valid same-sex marriages performed in other states.

The court will answer the recognition question only if same-sex marriage advocates lose the marriage argument. And, as with the marriage argument, the justices appeared to be divided along familiar ideological lines on that second point.

The justices’ questions centered on two key issues: Who should decide: the court or the electorate? And is more time necessary to gauge any societal effects of same-sex marriage, particularly on children?

A cautious approach

The justices’ cautious approach was reflected almost as soon as the marriage argument began when Kennedy, apparently concerned about changing thousands of years of marriage tradition, said, “The word that keeps coming back to me is ‘millennia.’ ”

The traditional definition of marriage as between a man and a woman, he said, has been the definition for a millennium. “And it’s very difficult for the court to say, ‘Oh, well, we know better,’ ” he said.

Kennedy’s caution, paired with similar sentiments from Chief Justice John Roberts Jr., could be a sign that the court is not ready to go all the way toward requiring states to allow same-sex marriage.

“You’re seeking to redefine marriage,” Roberts told Mary Bonauto of Gay & Lesbian Advocates & Defenders, counsel to the same-sex couples challenging marriage bans in Michigan and Kentucky. “You’re not seeking to join the institution. You’re seeking to change what the institution is.”

Roberts said he was struck by the quick increase in public acceptance of same-sex marriage but told Bonauto, “If you prevail here, there will be no more debate.”

Bonauto answered by reminding Kennedy, in particular, that the first same-sex marriage case to get to the court—Baker v. Nelson—was decided more 40 years ago. And it was more than 20 years ago, she said, that the Hawaii Supreme Court indicated it would rule in favor of same-sex marriage. “It has been exhaustively aired,” she said.

And Justice Ruth Bader Ginsburg noted that the marriage tradition itself has changed over the years, from a time when a woman was obligated to follow the man. The change in the institution made it “egalitarian when it wasn’t egalitarian,” she said.

Later, Kennedy seemed to switch gears by discussing whether same-sex couples should also enjoy the “nobility” of marriage.

Ginsburg and justices Elena Kagan and Sonia Sotomayor threw lifelines to Bonauto and sought to defend the notion that same-sex couples deserve equality in marriage. Justice Stephen Breyer at one point seemed to wish same-sex marriage could be achieved through the democratic process, not through the courts.

Bonauto received a strong boost to her constitutional argument from Solicitor General Donald Verrilli Jr., who argued against leaving the decision to the political process. The likely outcome of that process, he said, is “a house divided,” as the nation had been with de jure racial segregation. In some states, he said, gay couples will be relegated to “demeaning, second-class status, and I don’t know why we would want to relive that history.”

As tough as the conservative justices were on Bonauto, the liberal justices sharply challenged positions taken by Michigan special attorney general John Bursch in defense of same-sex marriage bans. Bursch asserted that states have a rational basis for defining marriage as between a man and a woman—namely, to encourage the raising of children in stable family relationships.

“All the incentives marriage provides would be the same” for same-sex couples, Ginsburg replied.

Bursch insisted there are “consequences” when marriage is delinked from procreation and the bonding of children with their biological parents.

Kagan pressed several times to hear what harm there is to the state’s interest if same-sex marriages are allowed, and what is the reason for forbidding them. Bursch predicted more children would be born outside of marriage because society’s idea of marriage’s purpose would change.

The packed courthouse was disrupted at one point when a solitary spectator started shouting at the justices that same-sex marriage was a sin. The man, Rives Miller Grogan, was quickly removed from the court. Grogan was arrested in 2006 for a similar outburst during Supreme Court arguments, when shouted about abortion.

The recognition question

By the time the justices reached the second argument of the day, over recognition of same-sex marriages conducted out of state, they seemed to have run out of steam.

Representing those couples in Ohio and Tennessee, Ropes & Gray’s Douglas Hallward-Driemeier argued that not only was there a fundamental right to marry, but also a right to remain married.

He said nonrecognition bans were “out of character” with the historic practices of the states. The states rarely refuse to recognize out-of-state marriages, he said, and they must have a “sufficiently important interest” to justify their refusal.

If recognition is constitutionally required, Roberts said, “One state would basically set policy for the entire nation.” And if the court rules against marriage in the first question, he added, “You can’t say the states are not treating marriage as marriage when they are not required to [license same-sex marriages] in the first place.”

Tennessee associate solicitor general Joseph Whalen said states’ nonrecognition of out-of-state marriages has been rare. However, he said, “When every state had the same definition of marriage, there was a liberal policy of recognition. The difference here is the landscape we find ourselves in. Other states have redefined the status quo. Tennessee has stood pat.”

Justice Antonin Scalia, clearly unsympathetic on the marriage question, seemed to switch—for a moment—on the recognition issue when he asked Whalen why the Constitution’s full faith and credit clause did not require states to recognize these marriages.

Whalen seemed unprepared for the question, and his answer—the difference between the states’ authority to recognize other states’ judgments, but not their laws—left several justices either puzzled or dissatisfied.

The cases from Michigan, Ohio, Kentucky and Tennessee came to the high court from the U.S. Court of Appeals for the Sixth Circuit, which ruled last November in favor of state bans on same-sex marriage. With four other circuits ruling against such bans, the Sixth Circuit decision created the split among federal circuits that gave the Supreme Court its opening to decide the issue.

The matter arrived at the high court with dramatic speed following the 2013 decision in United States v. Windsor, which struck down the section of the Defense of Marriage Act that defined marriage as between a man and a woman. Since then, the number of states allowing same-sex marriages has risen to 36, plus the District of Columbia.

In his Windsor dissent, Scalia angrily predicted the ruling would be a blueprint for the challenges to state same-sex marriage bans that, two years later, face the high court.

Scalia wrote, “The majority arms well every challenger to a state law restricting marriage to its traditional definition.”

IMAGE: The scene outside the U.S. Supreme Court during the same-sex marriage arguments. April 28, 2015. Diego M. Radzinschi

For more on this story go to: http://www.nationallawjournal.com/id=1202724857922/For-Justices-Marriage-Arguments-Highlight-a-Familiar-Divide#ixzz3YiTdoxbu

Related story:

Lawyers note skepticism, open-mindedness of justices after arguments

By Mike Sacks and Katelyn Polantz, From Legal Times

Minutes after the oral arguments in Obergefell v. Hodges concluded Tuesday, lawyers from both sides zeroed in on a U.S. Supreme Court that appears to be split on same-sex marriage.

“The justices all seem to have an open mind about the issue and were very respectful,” said John Bursch, the lawyer representing the state of Michigan, which opposed same-sex marriage. “They asked great questions and we look forward to a decision at the end of June.”

Mary Bonauto, who had argued that the 14th Amendment requires states to grant marriage licenses to same-sex couples, spoke alongside the plaintiffs she represented.

During her argument time, several justices resisted her point that the fundamental right to marriage encompassed same-sex couples. Chief Justice John Roberts Jr. said every dictionary he consulted until recently defined marriage as between a man and a woman; Justice Anthony Kennedy said that definition had lasted “millennia”; and Justice Samuel Alito Jr. inquired about marriage customs in ancient Greece, which had been more accepting of same-sex coupling.

“The job of the justices is to ask questions and test the various theories and certainly they had a lot of questions about ancient Greece and Rome,” Bonauto, of Gay & Lesbian Advocates & Defenders, told reporters outside the court. “That’s exactly what you would expect in an argument, is for them to test every legal theory and that’s what we heard. I don’t think we can predict based on that.”

Ryan Anderson of the conservative Heritage Foundation said in a statement that the questions he heard from Kennedy, perceived as the swing vote on the court, were “a good sign.” Anderson said: “They suggest his mind is not made up.”

The chairman of National Organization for Marriage, John Eastman, watched Kennedy closely as well.

“I am extremely encouraged by the questioning, especially from Justice Kennedy, because it focused on what marriage is. It shows that the justices realize that marriage has existed for millennia and they have no constitutional basis to redefine it,” he said, according to a statement released by the organization.

Suzanne Goldberg, a Columbia Law School professor, formerly of Lambda Legal, read the questioning a bit differently—and more optimistically. She said she heard “absolute skepticism” from the justices regarding the states’ arguments for their prohibition. “The strong sense of nearly all of us in the courtroom is that nationwide marriage equality is on the way,” she said.

Others, especially from organizations that support gay marriage, responded to U.S. Solicitor General Donald Verrilli Jr.’s performance before the court. He advocated for urgency from the Supreme Court, the opposite of the federalist argument that would leave decisions about same-sex marriage to individual states.

“The solicitor general I think did a powerful job and seemed to hold the court’s attention to great effect,” Susan Sommer, director of constitutional litigation for Lambda Legal, said. “I really was struck by that. They seemed to be hanging on his words.”

A rising choruses of chants, songs and rallies, representing both sides of the social debate drowned out many of the more formal speakers on the Supreme Court steps. At times, the Washington gay men’s chorus sang “We shall overcome.” Those who opposed same-sex marriage released a bundle of white balloons into the sky at one point.

“It only takes five justices in here to make a decision that they would tell you we all have to live under until they change their minds,” said Rep. Steve King, R-Iowa, among the rally participants against same-sex marriage, before comparing a potential ruling for same-sex marriage to the Dred Scott case. Rep. Louie Gohmert, R-Texas, later took the podium to denounce same-sex marriage as against both God and nature.

Members of the outspoken conservative Westboro Baptist Church sang along to pop songs with rewritten lyrics that called for God’s punishment. Other “traditional marriage” supporters held signs that criticized homoesexuality and invoked Jesus and Bible verse.

At times, the pro-gay-marriage rally counted louder, more numerous support. Advocate groups for gay marriage in attendance included the American Civil Liberties Union, Human Rights Campaign and Lambda Legal.

Evan Wolfson of Freedom to Marry emerged from arguments “very, very hopeful.” A leading advocate since the 1980s for same-sex marriage, he has said that he hopes the court will put him out of a job. “We’re going to find out in June, but I’m hoping.”

Julie Goodridge, the plaintiff who won the right to marry in Massachusetts in 2003, told the National Law Journal after the arguments she was most pleased to see Margaret Marshall in attendance Tuesday morning. Marshall was the Massachusetts Supreme Judicial Court chief justice who wrote the majority opinion in Goodridge and gay couples’ favor, for the first statewide court ruling to allow their marriages.

“I wish she could stand up [inside the Supreme Court] and shout out what she said in her decision,” Goodridge said.

Ted Olson, the well-known appellate litigator from Gibson, Dunn & Crutcher who argued the Supreme Court challenge against California’s Proposition 8, walked down the courthouse steps shortly after exiting the court. He had been ambivalent about attending Tuesday’s arguments in recent weeks.

“I didn’t feel that it would be right to stay away,” he said in an email Tuesday afternoon.

NLJ reporter Zoe Tillman contributed to this report.

IMAGE: Douglas Hallward-Driemeier, at mic, and Mary Bonauto, right, address the media outside the U.S. Supreme Court. April 28, 2015. Photo: Diego M. Radzinschi/NLJ

For more on this story go to: http://www.nationallawjournal.com/legaltimes/id=1202724833554/Lawyers-Note-Skepticism-OpenMindedness-of-Justices-After-Arguments#ixzz3YiUMgHyR