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During Supreme Court debate on gay marriage, all eyes on Justice Kennedy (+video)

Supreme Court Justice Anthony Kennedy is the perceived swing vote in the gay marriage case argued Tuesday. Based on his questions, it appears the justice may be reluctant to embrace a sweeping constitutional holding.

A sharply divided US Supreme Court on Tuesday engaged in an intense and wide-ranging debate in a potential landmark case examining whether the Constitution requires states to allow same-sex marriages.

From the opening minutes of the 2-1/2 hours of argument, all eyes were on Justice Anthony Kennedy, the perceived swing vote in a case most analysts expect will be decided by a 5-to-4 vote.

Based on his questions from the bench, it appears that Justice Kennedy may be reluctant to join his liberal colleagues in issuing a sweeping constitutional holding recognizing a fundamental right that would require every state to embrace marriages by gays and lesbians.

But that doesn’t necessarily mean that Kennedy is prepared to fully embrace the position advocated by the states in the case – adopting a go-slow approach and allowing the states to continue to define marriage.

The court has until late June to write and deliver its decision.

“The word that keeps coming back to me in this case is millennia,” Kennedy said, referring to the length of time marriage has been defined in the traditional way as a union of one man and one woman.

“This definition has been with us for millennia,” he said. “It’s very difficult for the court to say, oh, well, we know better.”

Mary Bonauto, a Boston civil rights lawyer arguing on behalf of same-sex couples challenging state marriage laws, responded that the place of gay people in American civic life has been contested for more than a century. The marriage issue has been in the courts since the 1970s, she added.

“It’s not about the court versus the states,” she told the justices. Instead, the case is about individuals making the choice to marry and with whom to marry versus the government making a choice to exclude them.

As she concluded her remarks, a protester in the spectator gallery rose to his feet and shouted out a string of denunciations of homosexual conduct. “It is an abomination to God,” he yelled.

Security officers carried the man quickly from the courtroom. His shouts continued to echo through the high court’s marbled halls as he was dragged away.

Solicitor General Donald Verrilli used the opening of his argument to try to draw in Kennedy, in part by citing some of the language Kennedy used in his 2013 decision that struck down a key part of the federal Defense of Marriage Act.

He said for the court to leave the marriage issue to the political process in the states would impose enormous costs on same-sex couples.

“Thousands and thousands of people are going to live out their lives and go to their deaths without their states ever recognizing the equal dignity of their relationships,” Mr. Verrilli said.

Kennedy responded: “You could have said the same thing 10 years or so ago” when the high court handed down its landmark gay rights ruling in Lawrence v. Texas. The decision extended constitutional protections to homosexual relationships.

“Haven’t we learned a tremendous amount since Lawrence ... just in the last 10 years?” asked Kennedy, who wrote the majority opinion in Lawrence.

Although he didn’t explain his comment, he seemed to be suggesting that the nation had become significantly more accepting of the LGBT community. A recent poll showed that 62 percent of Americans now favor same-sex marriage.

The solicitor general agreed that Kennedy’s Lawrence decision was “an important catalyst that has brought us to where we are today.”

Later in the argument, Kennedy asked Verrilli why the solicitor general’s office presented a more restrained equal-protection argument in support of same-sex couples rather than arguing that the couples enjoy a fundamental right to marry regardless of sexual orientation.

The government’s argument, Verrilli said, was based on same-sex couples seeking equal participation in a state-conferred status and institution.

What the same-sex couples are doing, Verrilli said, is laying claim to the 14th Amendment’s protection of equal treatment. “And it is emphatically the duty of this court, in this case, as it was in Lawrence, to decide what the 14th Amendment requires,” he said.

“Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now,” Verrilli said.

In arguing for the states, John Bursch, special assistant attorney general of Michigan, told the justices that the case wasn’t about how to define marriage.

“It’s about who gets to decide that question. Is it the people acting through the democratic process, or is it the federal courts?”

Mr. Bursch said that marriage wasn’t developed to deny dignity or give second-class status to anyone. Instead, it arose from biology.

“Imagine a world today where we had no marriage at all,” he said. “Men and women would still be getting together and creating children, but they wouldn’t be attached to each other in any social institution.”

That’s a social problem that the state seeks to remedy by encouraging men and women to marry and care for any children the relationship might produce, he said.

Bursch said that if marriage was just about an emotional commitment between two adults, it wouldn’t directly address the social issue of children.

He further argued that any change to the long-held concept of marriage might bring about unforeseen consequences.

Several justices, including Elena Kagan and Kennedy, questioned how having same-sex marriage would harm the state’s interest in encouraging opposite-sex couples to raise their own children.

Changing a state’s definition of marriage to include same-sex marriages might reduce the marriage rate among opposite-sex couples, Bursch said.

Justice Sonia Sotomayor cited a friend-of-the-court brief from Massachusetts that reported that marriage rates had remained constant since that state changed its law.

The brief submitted by Massachusetts and 15 other states says states have not experienced a reduction in their marriage rates since they embraced same-sex marriage. But a competing friend-of-the-court brief filed by 100 scholars of marriage says the marriage rate statistics cited by Massachusetts are deceptive because the totals are inflated by counting same-sex marriages.

The brief says that a different picture emerges when measuring the marriage rates of opposite-sex couples over time. In the four states that continue to collect that data, opposite-sex marriage rates have fallen and are now at the lowest levels recorded in each state’s history, according to that brief. Those states are Massachusetts, Vermont, Connecticut, and Iowa.  

Bursch responded to Justice Sotomayor’s comment by suggesting that the states’ experience was taking place in a very short time frame.

“But you’re the one that brought the statistic up,” Kennedy said. “And under your view, it would be very difficult for same-sex couples to adopt some of these children. I think the argument cuts quite against you.”

Kennedy went on to tell Bursch he was operating under a “wrong premise,” that only opposite-sex couples can bond with the child.

“That’s not my premise,” Bursch replied. “The premise is that we want to encourage children to be bonded to their biological mother and father. We don’t disagree at all that same-sex couples can be bonded to their children,” he said.

“We hope that’s the case.”

But how does same-sex marriage discourage people from bonding with their biological children?, Justice Kagan asked.

Bursch said it comes in changing the foundation of marriage from a biological bond as the basis of traditional marriage to an emotional commitment under a more expansive definition of marriage.

Over decades, as laws and societal views change, there will be consequences, he said.

“What they are asking you to do is to take an institution, which was never intended to be dignitary-bestowing, and make it dignitary-bestowing,” Bursch said.

This is a line that should be drawn through the democratic process at the state level, he said.

Bursch’s argument was a jab at Kennedy, who has frequently used the concept of dignity as an important feature in gay rights cases – and even in federalism cases.

Not surprisingly, Kennedy pushed back. “I don’t understand,” the justice said. “I thought [bestowing dignity] was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage,” he said.

“It’s dignity-bestowing, and these [same-sex] parties say they want to have that same ennoblement,” the justice said.  

“I think you are missing my point,” Bursch responded. He said the “glue” that the state uses to try to link biological mothers and fathers with their children are the benefits and burdens of marriage. Dignity is not necessarily among those benefits, he said.

“It’s not the state’s intent to take dignity away from same-sex couples or from anyone based on sexual orientation,” he said.

“I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties,” Kennedy said. “I’m puzzled by that.”

A decision in the case is expected by late June.

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