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What Happened Inside the Supreme Court Today

What Happened Inside the Supreme Court Today

What Happened Inside the Supreme Court Today

As oral arguments for and against marriage equality conclude, we're getting our first look at what took place at the nation's high court.


As 90 minutes of oral arguments in the nation's high court concluded, reports began trickling out about what transpired as the nine justices considered whether the U.S. Constitution guarantees same-sex couples the right to marry. 

A second set of oral arguments, scheduled for one hour, considered whether the Constitution requires states to recognize same-sex marriages legally performed in other states. Find updates about that portion of the hearing below. 

In her opening statement for the consolidated case originating in Ohio, Obergefell v. Hodges, pro-equality attorney Mary Bonauto noted that the love, commitment, and mutual support shared by married same-sex couples is equal to that of opposite-sex spouses, but that same-sex couples are denied the legal protection afforded to opposite-sex couples. 

(RELATED: Listen to the Oral Arguments of Obergefell v. Hodges)

"The stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment [of] equal dignity," said Bonauto, according to audio made available by the court. The entire purpose of the 14th Amendment, Bonauto argued, is to protect people from being relegated to second-class status. 

Justice Ruth Bader Ginsburg was the first to pose a question in the hearings, asking Bonauto how the court's decision in Windsor, which allowed states to continue to define marriage as they see fit but allowed the federal government, Bonauto said that states do have the right to define marriage by their own terms, "except that their laws must respect the Constitutional rights of persons, and Windsor couldn't have been clearer about that. And here we have a whole class of people who are denied the equal right" to participate in the government institution of marriage, which protects families. 

"I don't think you could come out of the argument today with any good sense of what the justices were going to do in this historic case," said Tom Goldstein of SCOTUSblog while on MSNBC immediately after the hearing. He said the liberal justices, as expected, sounded like they favored the plaintiffs. The conservative justices asked "a lot about tradition, about how marriage has always been between a man and a woman."

Chief Justice John Roberts, for example, said that he had searched for definitions of marriage prior to today's hearing and was unable to find anything older than about 12 years that did not define marriage as the union of one man and one woman, reports the Times. 

(RELATED: Antigay Heckler Dragged Out of Supreme Court Hearing)

"If you succeed, that definition will no longer be operable," Roberts told Bonauto. "You are not seeking to join the institution. You are seeking to change what the institution is." 

Justice Anthony Kennedy, widely considered to be the crucial swing vote, asked  Bonauto how to reconcile that marriage has always been between one man and one woman, according to the law. 

Bonauto rejected the Chief Justice and Kennedy's claims that marriage equality was a discussion that has only arisen in the past decade or so. Instead, she pointed to the 1976 marriage equality case in Baker that came before the Supreme Court, and argued that "the place of gay people in society" has been debated in court and the public sphere for the past century. 

On that same line of questioning, Justice Samuel Alito pointed to what he said was the definition of marriage for "millenia" as the union of a man and a woman. 

Pointing to Bonauto's claims in the brief for the Michigan case before the court, Alito asked if Bonauto believed that every state with a ban on gay marriage had enacted that ban out of sheer animus for gay and lesbian people, as did the Michigan law. 

Bonauto stopped short of decrying all marriage bans as motivated by outright animus, but she did find common ground among the laws seeking to deny same-sex couples the right to marry. 

(RELATED: See Why Equality Advocates Are Encouraged By Their Day in Court)

"The commonality among all of the statues, whether they were enacted long ago or more recently, is that they encompass moral judgments, and stereotypes about gay people," explained Bonauto. "Even if you think about something 100 years ago, gay people were not worthy of the concern of the government." 

When pressed by Justice Alito for not answering his question, Bonauto hedged.

"I don't know what other societies assumed," said Bonauto. "But I do believe that times can blind, and that it takes time to see stereotypes and to see the common humanity of people who had once been ignored and excluded."  

Justice Ruth Bader Ginsburg responded by noting that marriage had already changed from its millennia-old definition of being defined by a dominant and subordinate partner. 

"There was a change in the institution of marriage, to make it egalitarian, when it wasn't egalitarian, same-sex unions wouldn't fit into what marriage once was." 

Justice Antonin Scalia seemed to reject Ginsburg's assessment, noting that prior to the Netherlands in 2001, no society had envisioned marriage to include same-sex couples. 

"The issue is not whether there should be same-sex marriage, but rather who should decide the point," said Scalia. "You're asking us to decide it for this society when no other society until 2001 ever had it." 

One of the more tense exchanges during Bonauto's arguments came when several of the justices questioned Bonauto about the historical scope of legal marriage. Justices Stephen Bryer, Alito, and Kennedy all cited Ancient Greece as a society that embraced homosexuality and a form of legal marriage equality — asking whether those ancient societies cut the legs out of Bonauto's argument that gay, lesbian and bisexual people face a long history of discrimination. 

Bonauto responded by again pointing to the 14th Amendment to the Constitution, which "sets forth principles that we areall governed by and govern our lives." 

"Likewise, even if race was not used as a basis for discrimination in every single state as a matter of law, it was incredibly pervasive," said Bonauto of discrimination against interracial couples before the Court issued its landmark decision in Loving v. Virginia. "And again, changing that, as Virginia resisted in the Loving case, resisted and said, 'Please, wait and see,' 80 percent of the American public was with Virginia on that. But again, it was the question of the individual livery of the person to do something that was considered a profound change in its time."

(RELATED: Meet The People Who Waited Day in Line to Attend Hearing)

That's when Justice Alito asked Bonauto to explain, if the court ruled in favor of marriage equality nationwide, why it wouldn't subsequently be required to rule in favor of polygamy or group marriages. 

Bonauto offered two reasons: "One is whether the state would even say that such a thing is a marriage," Bonauto said. "But then beyond that, there are definitely going to be concerns about coercion and consent and disrupting family relationships when you start talking about multiple persons."

Justices Alito and Scalia were not satisfied with Bonauto's answer, and asked her to explain why a petition to recognize multiple people in a relationship being recognized as a marriage was any different from asking the court to recognize the right of same-sex couples to wed, which has never before been enshrined in the U.S. Constitution. 

Assuming the Court agreed that a right to marry was a fundamental right, Bonauto stressed that the legal concerns with multiple-person marriage would be "lots of family-disruption issues."

"I assume that the states would come in and they would say that there are concerns about consent and coercion," she continued. "If there's a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis."

Justice Kennedy later opined that the court should only cautiously consider recent social science studies showing that same-sex couples raise children as well as opposite-sex couples. 

But Bonauto was ready with a powerful response about why such a "wait-and-see" approach was not cautious, but discriminatory. 

(RELATED: Photos of The Intense Scene Outside the Supreme Court Hearing)

"I do think the effect of waiting is not neutral," said Bonauto. "It does consign same-sex couples to this outlier status, and there will be profound consequences that follow from that." 

Moments after Bonauto concluded her argument, a heckler interrupted the proceedings, activist Lane Hudson tells The Advocate. Hudson was inside the courthouse, waiting in line to hear a brief segment of the argument. 

"The doors burst open," recalls Hudson. "It happened very quickly — there was a guy yelling and security guys dragging him out, and he was resisting and flailing and refusing to go. They had to drag him out and subdue him right outside the doors and cuff him. He didn't stop yelling the whole time."

Following the interruption, the U.S. solicitor general, speaking on behalf of the Obama administration, urged the court not to wait on bringing marriage equality to all 50 states. Same-sex couples "deserve the equal protection of the laws, and they deserve it now," said Donald Verrilli Jr., according to USA Today reporter Brad Heath.

At that point, Michigan's special assistant attorney general, John J. Bursch, Esq., approached the Court to argue the state's case supporting its existing ban on same-sex marriage. 

Essentially, the state argued that "we're not ready yet," said Bursch. "This case isn't about hot to define marriage. It's about who gets to define that question. Is it the people acting through the democratic process, or is it the federal courts? And we're asking you to affirm every individual's fundamental liberty interest in deciding the meaning of marriage." 

That's when Justice Sonia Sotomayor interjected. 

"I'm sorry," Sotomayor said. "Nobody is taking that away from anybody. Every single individual in this society chooses, if they can, their sexual orientation or who to marry or not marry. 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. So we're not taking anybody's liberty away." 

Bursch responded that "We;re talking about the fundamental liberty interest in deciding the question of what marriage means," which prompted Justice Breyer to interrupt. 

Noting that marriage has been "fundamental" for "10,000 years," Breyer pointed out that marriage is currently "open to vast numbers of people who both have children, adopt children, don't have children, all over the place."

"But there is one group of people whom they won't open marriage to," Breyer continued. "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 we talk about racial segregation."

The second response to that question, Justice Breyer posited, is that marriage equality is wrong "because certain religious groups do think it's a sin… There's no question about their sincerity, but is a purely religious reason on the part of some people sufficient?"

Bursch responded by saying that the arguments outlined by Justice Breyer were not the arguments the state was advancing. Instead, he said, the state argues that "the marriage institution did not develop to deny dignity or to give second class status to anyone."  Marriage evolved, Bursch claimed, to support relationships that "arise from biology." 

Bursch then claimed that in the eyes of the state, marriage has nothing to do with love and commitment. 

"As a society, we can agree that that's important, but the state doesn't have any interest in that," said Bursch. 

The more reliably liberal justices had tough questions for the attorneys representing states defending their bans on marriage. Justice Stephen G. Breyer asked why states should be allowed to exclude gay and lesbian citizens from the "fundamental liberty" of marrying the person they love, according to the New York Times

Justice Ginsburg was characteristically blunt in questioning the legitimacy of antigay arguments, notes the Times. "You're not taking anything away from heterosexual couples" if the state allows same-sex couples to marry, she said

This story is developing — check back for updates. 

Lucas Grindley and Neal Broverman contributed reporting to this article.

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Sunnivie Brydum

<p>Sunnivie is an award-winning journalist and the managing editor at&nbsp;<em>The Advocate</em>. A proud spouse and puppy-parent, Sunnivie strives to queer up the world of reporting while covering the politics of equality daily.</p>

<p>Sunnivie is an award-winning journalist and the managing editor at&nbsp;<em>The Advocate</em>. A proud spouse and puppy-parent, Sunnivie strives to queer up the world of reporting while covering the politics of equality daily.</p>