The Supreme Court isn't expected to rule on whether same-sex marriage is a constitutional right until June, but if the first two and a half hours of oral arguments on Tuesday were any indication, convincing some of the justices to embrace marriage equality across the US could be a daunting task.
The proceeding Tuesday offered insights about the individual views of several justices, with some emphasizing that marriage has traditionally been between a man and a woman. Justice Anthony Kennedy said that definition has applied for "millennia."
The conversations between the justices focused on whether the constitution requires states to issue same-sex marriage licenses, and whether states must recognize gay marriages that are performed in other states. The cases currently before the court are from Kentucky, Michigan, Ohio, and Tennessee — four of the 14 states that do not permit same-sex unions.
The attorney for the plaintiffs, Mary L. Bonauto, a gay rights activist, argued that marriage is the "foundation of family life in our society," and that denying gay and lesbian couples the right to wed imparts them with a "stain of unworthiness." Kennedy and Chief Justice John Roberts, who are believed to be the deciding votes on the case, expressed rather different views.
Emphasizing that the definition of marriage has historically been between a man and a woman, Kennedy said "the word that keeps coming back to me is millennia." But later, when attorney John Bursch called for preserving state gay marriage bans, Kennedy said his argument seemed to "assume same-sex couples cannot have a more noble purpose."
While many expected Roberts to lean toward marriage equality, his remarks Tuesday suggested otherwise. Roberts said that people are looking to redefine the concept of marriage. "You're not seeking to join the institution, you're seeking to change what the institution is," he said. "The fundamental core of the institution is the opposite sex."
Justice Antonin Scalia, who has opposed gay marriage in the past, expanded on Kennedy's comments about the perception of marriage that has prevailed throughout history. While Bonauto argued for the legalization of gay marriage, Scalia noted that the ancient Greeks embraced same-sex relationships, and asked if there was "any society prior to the Netherlands in 2001 that permitted same-sex marriages?"
"There have been cultures that did not frown on homosexuality," Scalia said. "That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was — it was well accepted within certain bounds. But did they have same-sex marriage in ancient Greece?"
Bonauto later replied that she could not "speak to what was happening with the ancient philosophers."
Justice Sonia Sotomayor seemed to make her views on the issue clear.
"Every single individual in this society chooses, if they can, their sexual orientation or who to marry or not marry," she said. "I suspect even with us giving gays rights to marry that there's some gay people who will choose not to. Just as there's some heterosexual couples who choose not to marry. So we're not taking anybody's liberty away."
The marriage equality movement made gains across the US this past year when lower court rulings tossed out several state-level bans. The four states involved in the Supreme Court case had their bans upheld in November by the federal appeals court in Cincinnati. In the case Obergefell v. Hodges, the lower court ruled that voters and legislators should have the final decision on same-sex marriage.
The Michigan case involves two nurses, April DeBoer and Jayne Rowse, who sued the state for the right to wed. Couples in Tennessee and Ohio challenged state laws that ban the recognition of gay marriages performed in other states. The Kentucky case focuses on two groups: One involves four same-sex couples that got married in other states, and the other includes two same-sex couples that want to tie the knot in the Bluegrass State. Kentucky prohibits same-sex marriages and does not recognize marriages performed elsewhere.
Josh Block, an attorney for the American Civil Liberties Union (ACLU) National LGBT project, told VICE News that permitting gay marriages would have a "huge tangible impact on the lives of all of our plaintiffs in Kentucky."
"If couples are raising kids, only one is recognized as a legal parent for the child because Kentucky doesn't recognize them as married," Block said. "If some of the couples are getting older, if something happens to one of those couples in the hospital, the other one doesn't have the guarantee of making a medical decision. It really has a far-reaching effect on these people's lives."
Block stressed the significance of recognizing gay marriage, emphasizing that it provides dignity to couples.
"Being able to be married is part of having equal dignity in the eyes of society," Block said. "I think that it will help the process of people understanding that same-sex couples are just like different sex couples and our families are no different than anyone else's family."
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