Since 2013, when the United States vs. Windsor case was heard and the third section of the Defense of Marriage Act (DOMA) was struck down as a result, the nation has rapidly moved toward greater acceptance of same-sex marriages. In less than two years, the number of states that issue marriage licenses to same-sex couples increased from 17 states to 36 states and Washington, D.C., and only 14 states do not accept same-sex marriage today.
Most recently, the Supreme Court heard oral arguments on Tuesday regarding cases involved with same-sex marriages in four states—Ohio, Kentucky, Tennessee, and Michigan. The decision of the nine Supreme Court Justices that results from this hearing—which most project will be made by the end of June—will make a historic statement on the status of marriage in the country.
The Supreme Court will make a historic decision regarding same-sex marriages by the end of June.
The two main questions: Who gets to choose what? Do the states have to recognize out-of-state marriage licenses?
The oral arguments were centered on two main questions:
1) Does the Fourteenth Amendment require a State to license a marriage between two people of the same sex? (which will hereon be referred to as Question 1)
Marriage is currently an institution that is determined at the state level, and until recently when state’s amendments and propositions were struck down by federal courts, any given state's definition of marriage was determined through a bill or through a voter-approved proposition.
Hence, Question 1 could be seen as the essential issue at stake in this case, as it determines whether same-sex couples have a constitutional right to be granted marriage licenses. Who gets to decide who I want to marry? And who gets to decide the definition of marriage for me? In other words, what is at stake in this case is the right of an individual to be able to choose his or her spouse, and the right of a state to decide what an institution like marriage means in that state.
2) Does the Fourteenth Amendment require a State to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? (which will hereon be referred to as Question 2)
If the Supreme Court finds that the answer to Question 1 is a yes, then this second question doesn’t need to be answered, since same-sex marriage will be accepted on a national level in that case. But if the Court finds that the answer to Question 1 is a no, then the Justices’ decision regarding Question 2 will determine whether same-sex couples married in certain states will still be recognized as married in states in which marriage licenses are not issued to same-sex couples.
The following are some of the concerns that the judges voiced during the oral arguments.
Do judges have the right to change a long-standing definition of marriage?
Justices brought up concerns involving the fact that the definition of marriage as between a man and a woman has existed for thousands of years and in almost all societies and cultures.
“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?” posed Justice Samuel Anthony Alito, Jr. “Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way, or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”
Justice Stephen G. Breyer said the view that marriage is between a man and a woman “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and 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 what marriage is to include gay people.”
“If you read about the Kalahari people or ancient peoples, they didn’t have a government like this,” Justice Anthony M. Kennedy said. “They made it themselves and it was man and a woman.”
“This definition has been with us for millennia,” Justice Kennedy continued. “And it’s very difficult for the Court to say, ‘Oh, well, we know better.’”
Would changing the definition of marriage lead to different types of relationships being legally validated in the future, for example, polygamy?
Another concern was whether changing such a long-standing definition would present the possibility of suddenly opening it up to other types of relationships, such as polygamy. Justice Alito posed that “a marriage between two people of the same sex is not something that we have had before," and "recognizing that is a substantial break.”
Hence, if same-sex marriage were to be accepted nationally, “Why [would accepting polygamy] a greater break?” he asked.
Would accepting same-sex marriages as valid lead to restrictions on religious practice?
Religious freedom was another issue that was brought up in the case that same-sex marriage is accepted as a constitutional right.
Justice Scalia was the strongest proponent of this concern. He explained that when the definition of marriage is a matter of the States, exceptions could be made as “to what is required for same-sex marriage, who has to honor it, and so forth.”
“But once it’s made a matter of constitutional law … Is 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? Is it conceivable that that would be allowed?”
Other religious issues were brought up. What about a religious school that has married housing? Would it “be required to afford such housing to same-sex couples?” Chief Justice John G. Roberts asked. What would happen to the tax-exempt status of a college or university that opposed same-sex marriage?
Does the State have a good reason to exclude a group of people from the institution of marriage?
The biggest issue that the Justices had with the position that the states should decide the definition of marriage for themselves, is whether the states have a good enough reason to exclude a specific group of people from the institution of marriage.
“I think before something as fundamental to a society and to individuals as marriage, before an exclusion of this kind can be made in that institution, the State needs some reason for that exclusion,” said Justice Elena Kagan.
“Is gay marriage fundamental? Has black-and-white marriage been treated fundamentally? The issue was starting from the proposition of, is the right to marry fundamental?” Justice Sonia Sotomayor said. “And then is it compelling for a State to exclude a certain group of people?”
Attorney John Bursch asserted that the need for marriage licenses arose out of a state interest to encourage the bond of biological parents and their children to be stable and long-lasting.
“If we assume a basic purpose of marriage is to encourage an emotional and rearing bond between parents and children,” said Justice Breyer, how will “allowing gay people to marry … weaken it?”
Should a voter’s "feelings" come into play in decision-making?
Justice Sotomayor also disagreed with one of Bursch’s arguments that a reasonable voter at the ballot box could believe that two different types of marriages—one that is focused on the bond of parents and children, and one that is focused on emotion and commitment of the couple—would bring about different results in the family, which could lead a voter to prefer one over the other.
“Why would that feeling, which doesn’t make any logical sense, control our decision-making?” Justice Sotomayor asked.
Would a state be required to recognize atypical marriages including polygamous ones, or marriages between cousins, or marriages with minors, that were lawfully performed out-of-state?
In regards to Question 2, the Justices asked Attorney Douglas Hallward-Driemeier questions regarding different types atypical of out-of-state marriages, such as polygamous marriages, marriages between cousins, or marriages with minors, and whether any given state should be required to recognize them.
When posed with the issue of polygamy, Hallward-Driemeier responded that a state wouldn’t have to recognize that marriage because the State “doesn’t have such an institution,” and “the State’s marriage laws don’t address” issues related to polygamy.
Justice Scalia said the same reasoning could be used for same-sex marriages.
“The state says we only have the institution of heterosexual marriage. We don’t have the institution of same-sex marriage,” said Justice Scalia.
“So we have to assume that we would hold that a State has a sufficient reason for limiting marriage to opposite-sex couples,” said Justice Alito. “And Mr. Hallward-Dreimeier acknowledged that a State could refuse to recognize an out-of-state marriage if it has a very strong public policy against that marriage, if it’s a polygamous marriage, if it’s a marriage of very young individuals. So the question is whether there could be something in between. So there’s a sufficient reason for the State to say, we’re not going to grant these licenses ourselves, but not a strong enough reason for us not to recognize a marriage performed out of state.”
