Last week the nine-justice panel of the nation´s highest court FINALLY heard arguments from both sides of the marriage equality debate. During the 2.5 hour session for oral arguments, the justices questioned the lawyers, giving pundits and speculators fodder for a few days of headlines, but most everyone involved acted just like were expected to — the gay marriage haters hated, the lawyers argued, the conservative judges tilted their hands that they would rule against us, and the liberal judges will clearly rule for us. So where do we stand? Well, it´s all in Justice Kennedy´s hands; and no one knows how he will rule. Like everyone else involved, Kennedy played his role to a tee and seemed to support the marriage equality argument at some points, and disparage the argument at other points. So what were they arguing? What´s it all about? Chances are you know a bit about it but everyone who reads this magazine has a huge stake in the outcome of the ruling on this case, so we are bringing you a bit more about the case, the lawyers, the justices, and what is really at stake.
In the words of my hero Julie Andrews as Maria von Trapp, let´s start at the very beginning, a very good place to start… The court is hearing the case of Obergefell v. Hodges, a case that was actually a consolidation of four different lawsuits filed in four different states. The first, Obergefell v. Hodges, was filed in Ohio after a same-sex couple petitioned the courts to have a same-sex spouse listed on the death certificate of the other spouse (who was dying of ALS). The couple, who lived in Ohio, where there was no marriage equality, rushed to Maryland, a marriage equality state, to get married, while one partner was on his deathbed. The other, now-consolidated cases, were filed in Tennessee, Michigan, and Kentucky. All four states, including the original case in Ohio, are all in the same appellate court jurisdiction, one where challenges to the constitutionality of same-sex marriages were ignored and bans on those marriages were upheld. In every other appellate court case dealing with marriage equality, the courts had ruled to overturn the bans, so this ruling set up a challenge that caught the attention of the Supreme Court since it differed from the rest.
Arguing the case on the side against marriage equality was John J. Bursch of Michigan, who according to SCOTUSBlog.com, insisted repeatedly that the states, in maintaining their bans, were not trying to demean same-sex couples, and were not trying to take any dignity away from them as committed partners. But his portrayal of same-sex marriage was as an adult commitment to another person out of love and attraction, rather than a true dedication to bringing children into the world and nurturing them in a traditional family. “The state’s entire interest,” Bursch said, “springs out of the fact that we want to forever link children with their biological mom and dad when that’s possible.” Let me just put that in plain clear English: he´s saying the state´s main interest in denying the LGBT community the right to marry is because gays can´t keep kids together with their mommies and daddies. It´s really just horses–t: what about divorce, single parenthood, or old people who marry with no plans to have kids? It just doesn’t really make a lot of sense.
On the marriage equality side, opening and closing arguments were made by Mary L. Bonauto of Boston who has worked with GLAAD since 1990 and successfully argued the marriage equality case in Massachusetts, which became the first state to legalize marriage equality in 2004. In response to the state´s position outlined above, Bonauto responded, “The state’s entire premise here is that, if same-sex couples marry, then different-sex couples won’t and have their children in a marriage. Those two could not be further apart.” How does gay marriage negatively affect non-gay marriage? In two words: it doesn´t!
The Supreme Court is made up of nine justices who are not elected, but are appointed by the President of the United States. Currently, the Chief Justice is John Roberts, who was one of two justices appointed by President George W. Bush (R). The Associate Justices are Antonin Scalia (1986) and Anthony Kennedy (1988), who were both nominated by President Ronald Reagan (R); Clarence Thomas (1991), who was nominated by President George H.W. Bush (R), Ruth Bader Ginsburg (1993) and Stephen G. Breyer (1994), both nominated by President Bill Clinton (D); Samuel Alito (2006), nominated by President G.W. Bush; and Sonia Sotomayor (2009) and Elena Kagan (2010), who were both nominated by President Barack Obama (D). The conservative wing (read: anti-marriage equality) consists of Roberts, Scalia, Thomas, and Alito. The liberal wing of the court is Ginsburg, Breyer, Sotomayor, and Kagan. That leaves Kennedy as the swing vote and it’s important to point out that he has written the majority opinion in each of the three landmark cases that the Court has heard dealing with homosexuality, including the U.S. v. Windsor case in 2012 that has paved the way for marriage equality in most of the states where it’s legal today.
This case really comes down to two questions: can the states decide who can get married and do the states have to recognize marriages that are performed in other states? As we get closer to a ruling, which isn’t expected until late June when the Supreme Court will end the current term, Hotspots will continue to cover the issue, but in the meantime, I have a wedding to plan. In less than one month, I’m making him put a ring on it, so let’s just hope these crotchety old fogies make the right decision!