Courtroom Clash

Supreme Court Takes Up Issues Of Same-Sex Marriage In Historic Argument

As the U.S. Supreme Court pre­pared to hear oral arguments in a case concerning the constitutionality of marriage equality, Religious Right groups began to get antsy.

On April 24, just days before the argument, the Rev. Rick Scarborough, a Religious Right back bencher from Texas, convened a press conference in Washington, D.C. Scarborough, author of a book titled In Defense of Mixing Church and State, raised familiar Religious Right arguments: that extending marriage equality nationwide would compel pastors to perform such unions and that it would lead to widespread “religious liberty” violations.

Scarborough accused liberal clergy of tossing the Bible aside to remain culturally relevant. Ultimately, he said, the clash over same-sex marriage won’t be settled in legislatures or in courtrooms but “in heaven.”

Joining Scarborough at the podium were Keith Fournier, a right-wing Roman Catholic who used to hang out with the Christian Coalition back in the 1990s; Mat Staver, the founder of the Liberty Counsel; E.W. Jackson, a pastor known for his homophobia and his failed candidacy for lieutenant governor of Virginia, and Janet Boynes, who runs an “ex-gay” ministry.

James Dobson, founder of Focus on the Family, was supposed to be there but sent a video instead. During his message, Dobson asserted that pastors may soon be imprisoned for refusing to officiate at same-sex weddings.

“God help us if we throw his design for marriage on the ash heap of history,” Dobson said.

 The day of the argument, April 28, proponents and opponents of marriage equality were well represented outside the high court. Among the supporters of same-sex marriage was a contingent from Americans United. AU supporters carried colorful signs noting that U.S. law is based on the Constitution, not the Bible.

The atmosphere outside the Sup­reme Court was raucous and occasionally a little tense as police labored to keep the two sides apart. Inside the courtroom, things were more sedate, although the argument was sharp and spirited.

Most oral arguments before the Supreme Court last an hour. It’s perhaps an indication of the importance of this case that the high court extended the argument to two and a half hours.

Two questions were considered: Does the Constitution (specifically, the 14th Amendment) require a state to license a marriage between two people of the same gender, and does the 14th Amendment require a state to recognize a same-sex marriage performed by another state?

Justice Anthony M. Kennedy is considered the swing vote, so all eyes and ears were on him. Kennedy seemed to play both sides of the aisle. Early in the argument, the justice quizzed Mary L. Bonauto, the attorney arguing for the same-sex couples, asserting that one man/one woman marriage has been the standard for ages.

“This definition has been with us for millennia,” Kennedy said. “And it, it’s very difficult for the court to say, ‘Oh, well, we, we know better.’”

But later, Kennedy questioned John J. Bursch, special assistant attorney general for the state of Michigan who argued against marriage equality, and asserted that same-sex couples are really seeking the “dignity” that only legal marriage can bring.

“Same-sex couples say, ‘Of course, we understand the nobility and the sacredness of the 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.

Other justices went off on strange tangents. Justice Samuel A. Alito aggressively questioned all of the attorneys, at one point bringing up ancient Greece. Alito’s point seemed to be that since the ancient Greeks tolerated homosexual acts but did not legalize same-sex marriage, not all bans on same-sex marriage are rooted in anti-gay animus.

“People like Plato wrote in favor of [same-sex relationships], did he not?” Alito asked Bonauto, later adding, “So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”

Bonauto replied, “I can’t speak to what was happening with the ancient philosophers.”

Alito also challenged Bonauto over the issue of polygamy, demanding to know if same-sex marriage would lead to legal unions between “four people, two  men and two women….And let’s say they’re all consenting adults, highly educated.  They’re all lawyers.”

Bonauto replied that the government would have a legitimate interest in banning such relationships because they spawn too many complex issues related to consent, child-rearing, child custody and potential fallout from divorce.

Justice Antonin Scalia relentlessly badgered Bonauto on the question of how marriage equality might affect clergy, asserting that pastors could be compelled to perform marriages for same-sex couples.

Insisting that he has concerns about “the wisdom of this court imposing through the Constitution a, a requirement of action which is unpalatable to many of our citizens for religious reasons,” Scalia repeatedly raised the specter of ministers being forced to marry same-sex couples.

“[I]s it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if indeed this court holds that they have a constitutional right to marry?”  Scalia asked. “Is it conceivable that that would be allowed?”

Bonauto dismissed the concern, pointing out that the First Amendment gives clergy the right to determine who qualifies for sacraments.

But Scalia continued to press the point, which led Justices Sonia Sotomayor and Elena Kagan to jump in. Sotomayor noted that no clergy members have been forced to perform same-sex marriages in the states where marriage equality is the law, while Kagan pointed out that some rabbis will not marry a couple unless both parties are Jewish, and none of them have been legally forced to change their policies.

(Not long after this exchange, Bonauto yielded the podium to U.S. Solicitor General Donald B. Verrilli Jr., who argued in favor of same-sex marriage on behalf of the Obama administration. Verrilli had barely started speaking when a man in the spectators’ gallery began screaming about hell­fire and damnation. As the Sup­reme Court police dragged him away, Scalia quipped, “It was rather refreshing, actually.”)

Much of the argument focused on the rights of children. This is because Michigan’s chief argument is that permitting same-sex marriage will endanger children.

This assertion has never been terribly persuasive, but Bursch was stuck with it. He insisted that legalizing same-sex marriage will somehow lead opposite-sex couples to take marriage less seriously.

Several of the justices from the high court’s liberal wing challenged Bursch. They noted that if ensuring the well-being of children is the state’s goal, it would make sense to extend marriage to the many same-sex couples who are raising kids.

Because the court is considering two questions, a split decision is possible. The high court could rule that states are not required to allow same-sex couples to marry within their own borders but that they must recognize the legal same-sex unions of other states.

Normally, states recognize one another’s marriages as a matter of course. This is because Article IV, Section 1, of the Constitution, the “Full Faith and Credit Clause,” requires each state to recognize the “public acts, records, and judicial proceedings of every other state.” But some states don’t want to do that in the case of same-sex marriage. (Even Scalia seemed to concede that there’s no way around the Full Faith and Credit Clause.)

Americans United Executive Director Barry W. Lynn joined Americans United staff members and supporters outside the court on April 28. “The Supreme Court has an opportunity here to expand personal freedom and make it clear that marriage is a civil matter that must not be denied to loving couples simply because of someone else’s religious beliefs,” Lynn said. “Let’s hope the justices take it.”