Legal Battle Over Gay Marriage Hits The Supreme Court Tuesday : It's All Politics People have been lining up for days hoping they will be among the lucky ones to get a seat for Tuesday's historic arguments. At issue: whether states can ban, and refuse to recognize, gay marriage.
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Legal Battle Over Gay Marriage Hits The Supreme Court Tuesday

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Legal Battle Over Gay Marriage Hits The Supreme Court Tuesday

Legal Battle Over Gay Marriage Hits The Supreme Court Tuesday

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We'll soon find out if the Supreme Court's views on same-sex marriage will follow public opinion. The court hears a case on marriage rights today, and people have been lining up since Friday in hopes of getting a seat.


Four states are defending their bans on same-sex marriage. Michigan, Ohio, Tennessee and Kentucky won their cases in a lower court. But bans in many other states have been overturned at the same time as most Americans came to approve same-sex unions.

MONTAGNE: The high court has scheduled two and a half hours for arguments - far longer than the usual. We have a preview from NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: This high-stakes legal battle is the culmination of a decades-long struggle in the courts, state legislatures and at the ballot box. During that time, public opinion has changed and done so more rapidly and dramatically than on any major social issue in memory. In 1996, on average, public opinion polls showed only 27 percent of the public favoring legalization. This year, although many states still adamantly resist gay marriage, public opinion polls put the approval number nationally at well over 50 percent.

As of now, gay marriage is legal in 36 states. By the end of this Supreme Court term, same-sex couples will either be able to wed in all 50 states or gay marriage bans may be reinstituted in many of the states where they've previously been struck down. Today's courtroom battle pits states' rights against the fundamental right to marry. It pits the traditional definition of marriage against a more modern definition. And it pits majority rights against minority rights. Before the court are the consolidated cases of 12 couples and two widowers, among them nurses, teachers, veterinarians, an Army sergeant and businessmen and women. They say they filed lawsuits not to further a cause but because of the way the bans affected their lives. In Michigan, for instance, Jayne Rowse and April DeBoer have four adopted children, two with disabilities. Because the state does not allow same-sex couples to adopt but does allow single people to adopt, each of the women has adopted two of the children. April DeBoer.

APRIL DEBOER: We have a marriage. We just don't have a piece of paper that legally binds us to each other.

TOTENBERG: The wake-up call about their legal status came on a two-lane highway one snowy night when a truck in the wrong lane veered into a field to avoid hitting them head-on. After that harrowing near miss, they started putting wills and trusts into place to protect their children. But there was one thing they couldn't do - make sure that if one of them died, the other would get custody of the two children who'd been formally adopted by the deceased parent. Jayne Rowse.

JAYNE ROWSE: A judge could award that child to someone else, effectively making them a legal stranger to the child that they've helped raise since birth.

TOTENBERG: So in order to challenge the state adoption laws, they challenged the ban on gay marriage. Many of the other plaintiffs in today's case are, like Rowse and DeBoer, people who adopted or had children by artificial insemination, even couples legally married in another state but who now live in a state that bans gay marriage. Michigan Attorney General Bill Schuette defends the state's ban as an example of democratic rule.

BILL SCHUETTE: Who decides, the courts or the voters? There are 2.7 million people - voters - who made this decision.

TOTENBERG: But gay marriage advocate Mary Bonauto counters that this country does not put the fundamental constitutional rights of minorities to a vote.

MARY BONAUTO: This is not about self-government or persuading voters. It's about the Constitution and whether constitutionally same-sex couples can be denied the right to marry that all other Americans enjoy.

TOTENBERG: Arguing against her today will be lawyer John Bursch, representing Michigan and the other states. His task is to persuade the justices that Michigan has a rational justification for banning gay marriage.

JOHN BURSCH: It's really not possible to say that the marriage definition Michigan has had since 1805, when it was still a territory before statehood, has all this time been irrational.

TOTENBERG: Mary Bonauto replies that it doesn't really matter what people thought at the time the Constitution was written because the 14th Amendment, adopted after the Civil War, guarantees equal protection of the law.

BONAUTO: And this is a court that has recognized, time and again, that we have to look at current conditions in deciding what equality means.

TOTENBERG: Indeed, the Supreme Court has repeatedly said that marriage is a fundamental right that the state cannot interfere with without some real justification. It said that prisoners have the right to marry, and so do people too poor to make child support payments. And most famously, in 1967, the court struck down state bans on interracial marriage. So what are the justifications offered by the states now? They cite procreation. John Bursch.

BURSCH: Michigan has a legitimate interest in encouraging opposite-sex couples to enter into permanent, exclusive unions within which to have and raise children.

TOTENBERG: Bonauto counters that Michigan allows heterosexual couples to marry even if they're infertile, too old to have children or don't want to have children. Bursch cites other justifications - that men and women bring different attributes to child-rearing in a marriage.

BURSCH: Having that diversity of both a mother and a father can be a good thing for children.

TOTENBERG: Bonauto will tell the justices that by denying same-sex couples the right to marry, states are imposing concrete hardships. Because they're not considered one family, unmarried same-sex couples have to buy two health insurance plans to cover themselves and their children. If one of them should die, the other partner and his or her adopted children are not entitled to Social Security benefits. And, indeed, the parent whose name is not on the adoption papers could lose custody.

BONAUTO: And denying same-sex couples marriage means that you are increasing the number of children who are raised outside of a marriage and denying a whole class of children that security, that protection and saying they are not worthy of this most important relationship in life.

TOTENBERG: Bursch says the states are not trying to disparage anyone.

BURSCH: It comes down to who gets to decide between competing marriage models, which many people feel very strongly about. The people have the right to make that choice. And if the courts start imposing their own view of what marriage should be, that's going to do huge damage to the democratic liberty principle that has always animated our Constitution.

TOTENBERG: The second question being debated at the Supreme Court today is whether states that ban same-sex marriage may refuse to recognize legal marriages performed out of state. The couples presenting this question include people married in one state and then transferred by their employers to the state that bans gay marriage and in-staters who've traveled elsewhere to marry. The standard-bearer for the recognition cases, and indeed all the cases, is widower Jim Obergefell. Because his lawsuit was filed first, all of the consolidated cases are known as Obergefell v. Hodges, who's the Ohio official in charge of death certificates. It is the death certificate of Obergefell's longtime partner that's at the center of the recognition question. Obergefell and John Arthur were together for 20 years, but by 2013, Arthur was bedridden and dying of ALS, Lou Gehrig's disease. On June 26, the two men were watching TV as news flashed across the screen that the Supreme Court had struck down the federal law barring the national government from recognizing gay marriages performed in states where they're legal. Jim Obergefell.

JIM OBERGEFELL: I just immediately leaned over, hugged him, gave him a kiss and said, let's get married. It just seemed like the most perfect thing possible to do at that moment.

TOTENBERG: Friends and family quickly raised the money for a medical charter to Maryland, where gay marriage is legal. The couple exchanged vows as the plane sat on the tarmac and then headed back to Cincinnati. Just a few days later, though, the two would learn that Ohio would not recognize Jim as a surviving spouse on John's death certificate.

OBERGEFELL: And it was heartbreaking.

TOTENBERG: A federal judge, acting on an expedited basis because of John's health, ordered the state of Ohio to record Jim as the surviving spouse when the time came. Three months and 11 days later, John Arthur died, and Jim's name was listed as the surviving spouse on the death certificate. The state appealed, and if it wins in the Supreme Court, it can re-issue the death certificate without Jim's name. Today, gay marriage advocate Doug Hallward-Driemeier will tell the justices that states have long recognized each other's marriages.

DOUG HALLWARD-DRIEMEIER: The history of state recognition of marriages is that marriage that was valid where it was celebrated is going to be recognized in the new state, even if that couple could not have got married in that state.

TOTENBERG: The reason for that, he notes, is that people travel across state lines all the time, and their marriage travels with them. It doesn't matter that the wife, for instance, is too young to get married in some of the states a couple may live in or travel through. None of the four states defending their anti-recognition loss would provide someone to be interviewed for this broadcast. But Kyle Duncan, who represents 15 other states with similar laws, argues that the issue of gay marriage is unique, especially in the context of the state's prerogative to define and regulate marriage.

KYLE DUNCAN: Before 2003, no state in the United States had recognized same-sex marriage. Before 2000, as I understand it, no country in the world had recognized same-sex marriage. If it's that new and it involves this bedrock exercise of sovereignty by states, it seems to us the right position is to say, then let the states figure it out.

TOTENBERG: A decision in the case is expected by the end of June. Nina Totenberg, NPR News, Washington.

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