The audio of this morning’s oral arguments in the same-sex marriage case Obergefell v. Hodgeson before the US Supreme Court is now available. The first part dealing with the issue of whether states can ban same-sex marriages (what is known as the “marriage question”) lasts for 90 minutes and can be heard here while the second part dealing with whether states can refuse to recognize the marriages of same-sex couples who were legally married in another state (the “recognition question”) lasts 60 minutes and can be heard here. (Warning: autoplay).
If the court decides that states cannot ban same-sex marriages, the recognition question becomes moot. I haven’t had time to listen to the full audio yet but Amy Howe of the invaluable SCOTUSblog gives a summary of what happened and her impressions. Her conclusion: It’s hard to tell which way the justices are leaning.
On the first question of whether states could ban same-sex marriages, four of the justices (Roberts, Alito, Scalia, and Kennedy) questioned the counsel for the pro-same-sex marriage side, saying that the definition of marriage as between a man and a woman had been around for a long time, that the idea of other kinds of marriages was very new, and whether it was appropriate for the court to step in and say what it should be, and suggested that perhaps it should be left for ‘the people’ to decide.
Justices Ginsburg, Sotomayor, Kagan, and Breyer questioned the opposing counsel as to what the problem was with allowing same-sex marriage.
How, Justice Ginsburg asked, does allowing same-sex marriage take anything away from opposite-sex couples? Being married, Justice Sotomayor pointed out, doesn’t stop parents from getting divorced and abandoning their children. Justice Breyer chimed in, observing that a “very high percentage” of opposite-sex couples don’t have children, while a similarly high percentage of same-sex couples do.
Significantly, Justice Anthony Kennedy at times also seemed dubious of the states’ argument. Even if same-sex couples can’t have biological children together, he posited, they might still want the other benefits that come with marriage. Like his more liberal counterparts, he also appeared to question Bursch’s assertion that allowing same-sex marriages would harm opposite-sex marriages, as well as the contention that only opposite-sex couples can bond with their children.
On the second question of recognition, the counsel for the pro side said that states almost always recognize marriages recognized by other states. Chief Justice Roberts said that requiring them to do so in this particular case meant that one state could set marriage policy for the entire nation.
So where do things stand? Howe concludes:
Once again, it may all come down to Justice Kennedy, and he didn’t tip his hand during his questions and comments in the first part of today’s arguments. Kevin Russell, who contributes frequently to this blog, has suggested that the Chief Justice’s questions during the second part of the oral argument could be part of an effort to broker a compromise, in which the Court rules that there is no right to same-sex marriage but still gives the plaintiffs much of what they are seeking by requiring states to recognize same-sex marriages that happen somewhere else. Notably, however, Justice Anthony Kennedy was quiet during the arguments on the recognition question. Does that silence mean that he had already decided to rule for the plaintiffs on the first question, eliminating any need to worry about the second one? His colleagues will know the answer later on this week, when they meet to vote on the case. We won’t know until the Court issues its decision in late June, but when we do we will be back to report on it in Plain English.
Kennedy seemed impatient with the argument that allowing same-sex marriage would result in a drop in opposite-sex marriage and an explosion in out-of-wedlock births, a truly crazy argument in my view.
Other opinions on the hearings? Lyle Denniston thinks that Kennedy is leaning in favor of same-sex marriage while he sees a 4-4 split among the others. Robert Barnes and Fred Barbash seemed to think that Kennedy seemed to lean ever-so-slightly in favor of same-sex marriage while Chris Geidner was more optimistic.
I think three justices (the usual suspects Alito, Scalia, and Thomas) will oppose same sex marriage on both counts while Kennedy and Roberts could differ with them on at least one. This seems encouraging but I am not going to get my hopes up with this Supreme Court.