Same-Sex Marriage, In The Justices' Words : It's All Politics On Tuesday, the Supreme Court will hear arguments on the question of same-sex marriage. In the meantime, we know a good deal about the justices' views already.
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Same-Sex Marriage, In The Justices' Words

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Same-Sex Marriage, In The Justices' Words

Same-Sex Marriage, In The Justices' Words

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STEVE INSKEEP, HOST:

The U.S. Supreme Court may get the final word on gay marriage - maybe not precisely the final word. Some presidential candidates are saying they will keep pressing this issue no matter what the court rules in a case that it will hear tomorrow. But the court does have an opportunity to make a nationwide decision on an issue that until now has been fought out state by state. We do not know how the judge's will rule, but our legal affairs correspondent Nina Totenberg has learned a lot about the justices records on gay marriage.

NINA TOTENBERG, BYLINE: When it comes to gay rights, to say that there's been a revolution in the law is an understatement. As recently as 1986, the Supreme Court upheld a Georgia state law that made private consenting homosexual conduct a crime. Chief Justice Warren Burger in a concurring opinion quoted a description of homosexual sex as an infamous crime against nature worse than rape, and a crime not fit to be named. Just 17 years later, however, the court reversed itself and struck down an anti-sodomy law from Texas nearly identical to the Georgia law it had previously upheld. The author of that opinion was Justice Anthony Kennedy.

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ANTHONY KENNEDY: It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter.

TOTENBERG: Had the writers of the Constitution known all the possible components of liberty, Kennedy acknowledged, they might have been more specific, but they did not presume to have this insight.

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KENNEDY: They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress.

TOTENBERG: Descending vociferously from Kennedy's opinion was Justice Antonin Scalia.

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ANTONIN SCALIA: It is clear from this that the court has taken sides in the culture war, and in particular, in that battle of the culture war that concerns whether there should be any moral opprobrium attached to homosexual contact.

TOTENBERG: Fast-forward 10 years to 2013. The leading players remain. Kennedy again would write the decision for a five-justice majority, this time invalidating the federal Defense of Marriage Act that had barred federal recognition of same-sex marriages in states where they were legal. The law, said Kennedy, had the purpose and effect to disparage and to injure the personhood and dignity of legally married same-sex couples, converting their unions into second-class status. In dissent, Scalia predicted that legalization of same-sex marriage through the courts would become inevitable.

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SCALIA: By formally declaring anyone opposed to same-sex marriage as an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

TOTENBERG: Less than two years, Scalia's view hadn't changed but his tone had.

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SCALIA: Don't, you know, paint me as anti-gay or anything else.

TOTENBERG: The occasion was a Smithsonian Associates event in February with this reporter interviewing the conservative Scalia and his longtime liberal dueling partner Justice Ruth Bader Ginsburg. Scalia explained his view this time not as a culture war but a principle of democracy.

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SCALIA: The point is, who decides? Should these decisions be made by the Supreme Court without any text in the Constitution or any history in the Constitution to support imposing that on the whole country, or is it a matter left to the people?

RUTH BADER GINSBURG: As I see it, it isn't the Supreme Court that is deciding for the whole society like an imperial ruler.

TOTENBERG: Justice Ginsburg.

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GINSBURG: There hasn't been any major change in which there wasn't a groundswell among the people before the Supreme Court put its stamp of approval on the inclusion in the equality concept of people who were once left out.

TOTENBERG: Ginsburg went on to note that it wasn't until after World War II in the fight against the Nazis that the court faced the separation of the races in the U.S. and declared public school segregation unconstitutional.

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GINSBURG: It was a huge embarrassment that racism persisted in our country, that our troops in World War II until the very end were separated. I think that World War II made inevitable the change with respect to the status of racial minorities, and it was the same way with women's increasing demand to count as full citizens.

TOTENBERG: So where are the nine current Supreme Court justices on the issue of gay marriage? In 2013, the court struck down the Defense of Marriage Act by a 5-to-4 vote with the conservative Justice Kennedy joining the court's four generally liberal justices. It's likely that Kennedy will once again join the liberals in this term's challenge to state bans on same-sex marriage. But nothing is ensured, especially since Kennedy's 2013 opinion stressed the traditional right of the states to define marriage. Confronted by that states' rights question, gay rights supporters this week will point to the court's 1967 decision striking down state laws that banned interracial marriage. That case was called, fittingly, Loving v. Virginia, the plaintiffs being named - really - Mr. and Mrs. Loving. Chief Justice John Roberts raised the Loving case at his 2005 confirmation hearing when he was asked how he would evaluate newly asserted rights.

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JOHN ROBERTS: The example I think that I've always found it easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes, or do you look at the history of marriage?

TOTENBERG: Roberts concluded that under the court's precedents, it should look at the broader question - the history of the right to marry. Just what, if anything, that forecasts is unclear. The court has repeatedly said marriage is a fundamental right, but Roberts was a dissenter in the Defense of Marriage Act case. He would have upheld the law on the grounds that federal recognition justifies uniformity. This week's case, though, is different. It is the direct confrontation with bans on gay marriage that gay-rights advocates have been seeking for 20 years. And for the court and the justices, it has all the earmarks of legacy. Nina Totenberg, NPR News, Washington.

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