WASHINGTON — Justice Anthony Kennedy, who might hold the key to an historic civil-rights ruling, gave few clues to his thinking Tuesday as he tossed thorny questions at lawyers on both sides of the same-sex marriage controversy that now rests with the U.S. Supreme Court.
The states of Kentucky, Tennessee, Ohio and Michigan defended their same-sex marriage bans before the high court, citing a legitimate interest in preserving a traditional definition of marriage that bonds parents to their biological children. Same-sex couples from those states argued that marriage is a fundamental right for all Americans, and many of them have children who need the stability of marriage, too.
A decision in the case, titled Obergefell vs. Hodges, is expected by the end of June.
Almost immediately Tuesday morning, Kennedy — the anticipated swing vote in a possible 5-to-4 decision — interrupted the argument being made in favor of legalizing same-sex marriage by Mary Bonauto, a civil-rights attorney from Boston.
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At first, Kennedy sounded sympathetic toward the same-sex couples, drawing a parallel between this case and Supreme Court decisions from a half-century ago that desegregated public schools and overturned state laws against mixed-race marriages. But he quickly followed by noting that human civilization always has defined marriage as between one man and one woman.
"This definition has been with us for millennia," Kennedy said. "It's very difficult for the court to say 'Oh, we — we know better.'"
Several conservative justices told same-sex marriage advocates that they're uncomfortable with federal courts instructing states to rewrite their definitions of marriage. Only 11 of the three dozen states that now allow gay marriage got there through decisions made by their democratically elected state officials, Justice Antonin Scalia said. The remainder were ordered by federal courts.
It might be healthier for same-sex couples to convince their neighbors to expand marital rights at the ballot box, even if that takes longer than a climactic court ruling, Chief Justice John Roberts suggested.
"One of the things that's truly extraordinary about this whole issue is how quickly has been the acceptance of your position across broad spectrums of society," Roberts said to Bonauto. "But if you prevail here, there will be no more debate. I mean, closing of debate can close minds. And it will have a consequence on how this new institution is accepted."
But the Constitution guarantees Americans certain fundamental rights regardless of what majority opinion happens to be, Bonauto replied. When the Supreme Court struck down Virginia's ban on mixed-race marriages in 1967, 80 percent of Americans supported such a ban to keep whites and blacks apart, she said.
"In terms of waiting, I do think the effects of waiting are not neutral. It does consign same-sex couples to this outlier status, and there will be profound consequences from that," Bonauto said.
The court on Tuesday heard arguments on two constitutional questions: Does the Fourteenth Amendment, which requires the states to respect federally guaranteed civil rights, mean that states must issue marriage certificates to two men or to two women? And does it mean that states that ban gay marriage must recognize a valid same-sex marriage from another place?
Same-sex couples in Kentucky sued Gov. Steve Beshear on both of those points, challenging marriage bans written into state law in 1998 and the state constitution in 2004. They prevailed last year in U.S. District Court in Louisville. But the U.S. 6th Circuit Court of Appeals reversed the district court decision, and similar ones from Tennessee, Ohio and Michigan, leading to the current Supreme Court case.
Joining one of the lawsuits against Beshear was a big step for Jim Meade, 66, and Luke Barlowe, 73, who were at the Supreme Court Tuesday. The men met in 1968 at The Gilded Cage, a Lexington gay bar. They legally married in 2009 in Iowa. But the state of Kentucky does not recognize them as married, and given public sentiment, they kept their relationship discrete back home in Bardstown. Signing on as plaintiffs "ended 45 years of us living in the closet," Barlowe said.
"I get very upset that this court, these nine people sitting up there in robes, get to decide who I'm allowed to love and who I'm allowed to marry," Barlowe said.
The court's decision could split along the same 5-to-4 lines it showed in 2013 in United States vs. Windsor, a ruling that found the Defense of Marriage Act — a federal ban on recognizing gay marriage — to be unfair, arbitrary and unconstitutional. Kennedy cast the deciding vote and wrote the majority opinion in Windsor, which is why everyone was watching him closely Tuesday.
The justices posed a series of hypothetical questions to lawyers on both sides. If states can be ordered to recognize same-sex marriage, why not plural marriage, with multiple spouses, or incestuous marriage between siblings? Could religious clergy be forced to perform a wedding for gays or lesbians if that is declared a constitutional right?
Alternatively, if the states can limit marriage only to people expected to procreate, why can't it prohibit marriage between infertile couples or the elderly? And if the states can refuse to recognize each other's marriage certificates, what about birth certificates or other official acts?
On that last point, the "recognition question," as justices called it, lawyers for the same-sex couples said it is understood in American law that the states will acknowledge each other's marriages. Until gay marriage, the last time any of the four states in court Tuesday failed to recognize a marriage from outside its borders was 1970, in Tennessee, between a man and his step-daughter.
A lawyer for the same-sex couples, Douglas Hallward-Driemeier, told the court about two of the plaintiffs, Matthew Mansell and Johno Espejo. The men wed in California in 2008 and jointly adopted two children the next year. Then a job transfer took them to Tennessee, where they no longer are considered married and only one man can be the adopted parent of either child.
"The cost of that transfer for that job for them was the destruction of their family relationships, all that they had relied on in building their lives together," Hallward-Driemeier said. "And in support of that, the states offer exactly nothing. There is no reason that the state needs to disregard that marriage."
But the Fourteenth Amendment does not require states to recognize same-sex marriages from elsewhere if they have strong public policy reasons for sticking to the one man, one woman definition, said Joseph Whalen, an associate solicitor general for the state of Tennessee.
"Otherwise, each state would be able to essentially legislate for every other state," Whalen said.
"Tennessee, Ohio, Kentucky and other states with a traditional definition of marriage have done nothing here but stand pat. They have maintained the status quo," Whalen said. "Yet other states have made the decision, and it certainly is their right and their prerogative to do so, to expand the definition, to redefine the definition. To suggest that other states that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the state's ability to self-govern."
After the hearing ended, two Kentucky plaintiffs — Michael De Leon and Greg Bourke, who were legally married in Canada — took a look at the handsome facade of the Supreme Court building with their son Isaiah, 17, and daughter Bella, 16.
The Louisville family will be deeply affected by what the court decides in the next two months. If Kentucky is not required to acknowledge that De Leon and Bourke are legally wed, then it will also not have to recognize both men as the fathers of their children. At present, only De Leon is named as the adopted parent; Bourke cannot be. That affects everything from medical decisions to access to school records.
"If something were to happen to Michael, I don't know legally where that would leave us with Greg," Isaiah said.
"This feels like a true family to us. We're a complete family and we love each other," he said. Nodding at the nearby court building, he added, "Hopefully, this will get it through their thick skulls that gay marriage is just as much of a marriage as any other marriage, and we have two fathers."