Justices Deeply Divided Over Same-Sex-Marriage Arguments : It's All Politics Justice Kennedy, seen as the determinative vote in the same-sex-marriage cases before the Supreme Court, was very tough on gay-marriage advocates.

Justices Deeply Divided Over Same-Sex-Marriage Arguments

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ROBERT SIEGEL, HOST:

There was a scene in front of the U.S. Supreme Court today. Hundreds of people, colorful flags, balloons and much chanting and prayer.

(SOUNDBITE OF PROTEST)

UNIDENTIFIED WOMAN: When do we want it?

UNIDENTIFIED CROWD: Now.

UNIDENTIFIED MAN: Let us pray.

UNIDENTIFIED WOMAN: What do we want?

UNIDENTIFIED CROWD: Equality.

UNIDENTIFIED MAN: (Unintelligible) the lord.

UNIDENTIFIED WOMAN: When do we want it?

UNIDENTIFIED CROWD: Now.

SIEGEL: All that was happening because inside the court, historic arguments were being heard over gay marriage. At issue - whether gay couples will be able to wed in all 50 states or whether state bans on gay marriage will stand. NPR legal affairs correspondent Nina Totenberg was in the courtroom, and she reports the justices seemed deeply divided.

NINA TOTENBERG, BYLINE: Everyone knows who the key justice is - Anthony Kennedy, the author of the three decisions recognizing and expanding gay rights over the last two decades. And so Kennedy is widely seen as the deciding vote on a court that is closely divided on this issue. Kennedy, however, was very tough on gay marriage advocates today.

(SOUNDBITE OF ARCHIVED RECORDING)

ANTHONY KENNEDY: A word that keeps coming back to me in this case is millennia. This definition has been with us for millennia, and it's very difficult for the court to say, oh, well. We know better.

TOTENBERG: Justice Alito followed up.

(SOUNDBITE OF ARCHIVED RECORDING)

SAMUEL ALITO: How do you account for the fact that as far as I'm aware until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?

TOTENBERG: Lawyer Mary Bonauto replied that times can blind society to the humanity of people who are different and that the U.S. Constitution has repeatedly recognized and corrected for that blindness, as when it recognized women as equal under the law. Justice Ginsburg noted that indeed until 1982 when the Supreme Court struck down a law governing a wife's position in marriage, some states still recognized men as the masters of their wives. Justice Scalia, a longtime critic of the Court's position on gay rights, chimed in.

(SOUNDBITE OF ARCHIVED RECORDING)

ANTONIN SCALIA: Do you know of any society prior to the Netherlands in 2001 that permitted same-sex marriage?

TOTENBERG: Justice Breyer, considered one of the court's liberal justices, made a similar point.

(SOUNDBITE OF ARCHIVED RECORDING)

STEPHEN BREYER: Suddenly you want nine people outside the ballot box to require states that don't want to do it to change what you've heard is - change what marriage is to include gay people. Why cannot those states at least wait and see?

TOTENBERG: Lawyer Bonauto replied that waiting and seeing is not neutral for the thousands of couples and their children who do not have the benefit of marriage. Chief Justice Roberts agreed that waiting has consequences.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: But if you prevail here, there will be no more debate. And it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts.

TOTENBERG: Bonauto, however, wasn't giving up, noting that in many parts of the country, gay and lesbian couples have no protections in parenting. She noted that in most states with bans, gay couples must choose which of them is the adoptive parent, as the state will not approve unmarried couples for adoption. Justice Scalia then turned to another question.

(SOUNDBITE OF ARCHIVED RECORDING)

SCALIA: I'm concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons.

TOTENBERG: If gay marriage is protected by the Constitution, he asked, would that mean that ministers opposed to such unions would have to marry gay and lesbian couples? Bonauto replied that it's clear under the First Amendment guarantee of religious freedom that a cleric cannot be forced to perform a marriage that he or she disagrees with. Justin Kagan added a pointed example.

(SOUNDBITE OF ARCHIVED RECORDING)

ELENA KAGAN: There are many rabbis that will not conduct marriages between Jews and non-Jews, not withstanding that we have a constitutional prohibition against religious discrimination.

TOTENBERG: Justice Alito turned to a different question - marriages of more than two people.

(SOUNDBITE OF ARCHIVED RECORDING)

ALITO: A group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them the license?

TOTENBERG: Bonauto replied that there's a big difference between a marriage of four people and a traditional marriage of two and that a marriage of four would raise questions of coercion and consent and would implicate state laws involving everything from inheritance to divorce. Bonauto had completed her argument, and the chief justice had called on Solicitor General Donald Verrilli to begin his when the calm of the courtroom was shattered.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED MAN #2: (Unintelligible).

TOTENBERG: The unidentified man shouted, if you support gay marriage, you will burn in hell. Guards quickly dragged him from the courtroom, but his shouts could be heard outside. A few seconds later, everyone was ready to resume, as Justice Scalia observed, puckishly.

(SOUNDBITE OF ARCHIVED RECORDING)

SCALIA: That was rather refreshing, actually.

(LAUGHTER)

TOTENBERG: Verrilli, siding with the gay couples, summed up his argument this way.

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD VERRILLI: Gay and lesbian couples contribute fully as members of the community - that it is simply untenable - untenable to suggest that they can be denied the right of equal participation in the institution of marriage.

TOTENBERG: Next up to the lectern was Michigan lawyer John Bursch, representing the states with same-sex marriage bans. He told the justices that the states should be left alone to decide the question for themselves. Justice Breyer noted that gay couples are the only group that states exclude from the right to marry.

(SOUNDBITE OF ARCHIVED RECORDING)

BREYER: And so we ask, why? And the answer we get is, well, people have always done it. You know, you could've answered that one the same way when we talk about racial segregation.

TOTENBERG: Bursch replied that the states' interest is in procreation and binding children to their parents.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN BURSCH: When you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences.

TOTENBERG: Justice Kennedy seemed to reject that argument, noting that many same-sex couples adopt children and want the respect of a marriage in which to raise their children. But Bursch stuck to his guns, insisting that allowing gay marriages would reduce the number of heterosexual marriages. Justices, both liberal and conservative, seemed to balk at that assertion. Chief Justice Roberts.

(SOUNDBITE OF ARCHIVED RECORDING)

ROBERTS: I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe, and Tom loves Joe, Sue can marry him, and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

TOTENBERG: Bursch then pivoted to the rising rate of out-of-wedlock births. Justice Kennedy was more than skeptical about the connection.

(SOUNDBITE OF ARCHIVED RECORDING)

KENNEDY: And under your view, it would be very difficult for same-sex couples to adopt some of these children. I think the argument cuts quite against you.

TOTENBERG: Justice Breyer followed up, asking how gay marriage would weaken the parent-child bond.

(SOUNDBITE OF ARCHIVED RECORDING)

BURSCH: Justice Breyer, it's relatively simple. If you delink marriage from creating children, you would expect to have more children created outside the bonds of marriage.

TOTENBERG: Bursch also rejected the notion that marriage carries with it the value of dignity.

(SOUNDBITE OF ARCHIVED RECORDING)

BURSCH: What they're asking you to do is to take an institution which was never intended to be dignitary bestowing and make it dignitary bestowing. That's their whole argument.

TOTENBERG: Justice Kennedy bristled.

(SOUNDBITE OF ARCHIVED RECORDING)

KENNEDY: I thought that was the whole purpose of marriage. It bestows dignity on both men and women in the traditional marriage. And these parties say they want to have that same ennoblement.

TOTENBERG: So, a day of passionate arguments from both justices and counsel with a decision expected by the end of June. Nina Totenberg, NPR News, Washington.

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