Justice Kennedy has a lot to think about over the next two months when it comes to same-sex marriage.
His first question (third of the argument) raised an issue that was discussed throughout Mary Bonauto’s argument in favor of a constitutional right to same-sex marriage: for millennia (not years, decades, or even centuries) marriage has been between a man and a women. Then Justice Breyer, ever the pragmatist, asked why states can’t just wait and see whether same-sex is harmful to traditional marriage. And should just nine people be deciding this question anyway?
For those worried that Justice Kennedy’s and Justice Breyer’s initial questions indicate they are skeptical of a constitutional right to same-sex marriage, more favorable questions laid ahead. Even in his question to Ms. Bonauto—and later in a question to the Solicitor General –Justice Kennedy pointed out that 10 years was enough time for the Court to go from desegregating schools to declaring bans on interracial marriage unconstitutional. Perhaps more significantly, Justice Kennedy questioned Michigan attorney John Bursch’s argument, against a constitutional right to same-sex marriage, that states don’t believe that marriage “enhances the dignity of both the parties.” Dignity was the theme of Justice Kennedy’s opinion in United States v. Windsor where the Court struck down the Defense of Marriage Act.
As for Justice Breyer, his question to Mr. Bursch provides one answer to Justice Kennedy’s first question, if not his own questions: “But there is one group of people who they won’t open marriage to. So they have no possibility to participate in that fundamental liberty. That is people of the same sex who wish to marry. And so we ask, why? And the answer we get is, well, people have always done it. You know. You could have answered that one the same way [when] we talk[ed] about racial segregation.”
The Court was hard to read when it came to the second question in the case: assuming states are allowed to keep same-sex marriage bans, will states without a right to same-sex marriage be required to recognize same-sex marriages lawfully preformed in other states. On one hand, states typically recognize marriages performed in other states even if state laws vary on who may marry. On the other hand, if “recognition” becomes the law of the land, just one state allowing same-sex marriages could mean, practically speaking, that all same-sex marriages (performed in the state allowing them) would have to be recognized.
Interestingly, Justice Kennedy asked only one question of the attorneys arguing the recognition question. Might this be the case because he has already decided to vote that same-sex marriage bans are unconstitutional? We may never know but we will have a better idea by the end of June when the Court issues an opinion in this case.
Read more coverage of the oral argument in this case on SCOTUSblog: http://www.scotusblog.com/.