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US Supreme Court feels weight of all human history as it debates legalising gay marriage
Judges will rule on whether gay and lesbian Americans have a constitutionally guaranteed right to get married
The US Supreme Court wrestled with the precedent of thousands of years of human history yesterday as they debated legalising same-sex marriage and whether to fundamentally change an institution that has existed between a man and a woman for “millennia”.
In a landmark case, the nine justices heard arguments over whether gay marriage should be legalised as a constitutional right all across America, forcing the 13 US states who currently ban same-sex marriages to perform the unions.
The long-awaited case came two years after the Supreme Court voted 5-4 to strike down a law defining marriage as between only a man and a woman when it came to applying for federal benefits, paving the way for a potential wider ruling on gay marriage.
Colby Melvin, left, and Brandon Brown embrace after the 2013 Supreme Court ruling (Reuters)
Legal experts said the court appeared evenly split on the historic decision which will be handed down in June, with Justice Anthony Kennedy almost certainly holding the casting vote.
Justice Kennedy interrogated both sides fiercely, first arguing that legalising gay marriage would be over-writing thousands of years of tradition of marriage being between a man and a woman with an institution that only first became legal in the US just over a decade ago.
“This definition has been with us for millennia, and I think it's very difficult for this court to say ‘we know better’," Justice Kennedy said.
The speed of change on the gay marriage issue in the US has been dizzying. The first state to allow gay and lesbian couples to marry was Massachusetts, in 2004 and as recently as October, barely a third of the states permitted it. National opinion polls tipped in favour of gay marriage only in 2011.
John Roberts, the court’s conservative-leaning chief justice, agreed. “You're seeking to change what the institution [of marriage] is,” he said, before querying if the court should rule on an issue of such momentous and unsettled social policy. "Closing the debate can close minds,” he warned.
But set against those concerns, Justice Kennedy issued a notably strong challenge to lawyers for the anti-gay marriage side when they suggested that heterosexual marriages were superior because they included the higher purpose of procreation.
“That assumes that same-sex couples could not have the more noble purpose, and that’s the whole point,” said an unusually animated Justice Kennedy, interrupting.
Same-sex couple Jacques Hurtado (L) and Ismael Ramirez-Hurtado pose after they were married on July 1, 2013 in West Hollywood, California
“Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”
Predicting the outcome of Supreme Court hearings is notoriously difficult, and expert legal observers hedged over the direction that Justice Kennedy’s casting vote would fall in the case - known as Obergefell v. Hodges.
“The balance between Justice Kennedy's comments in the first and second halves of the argument leaves things in a state of flux. You couldn't confidently predict the outcome,” said Tom Goldstein of the authoritative Scotusblog which follows the court.
However Michel Paradis, a constitutional lawyer and professor at Columbia Law School in New York, said that Justice Kennedy’s previous rulings – with their accent on the dignity of the individual – should give the pro gay-marriage side the greater cause for optimism after the hearings.
“The concept of ‘dignity’ is the cornerstone of Kennedy's jurisprudence and the federal gay marriage decision from two years ago in particular,” Dr Paradis said.
“So the significance of this exchange is that Justice Kennedy sees Michigan’s gay marriage ban as infringing a legitimate dignity interest, and is unhappy with the lack of a meaningful response from the anti gay-marriage side.”
Both sides will have to wait until June for the court to hand down its verdict on an issue that still bitterly divides American, even as public opinion and a growing number of US states have swung behind gay marriage.
At one point, about 30 minutes after hearing began, a protester shouted that the justices would "burn in hell" if they backed gay marriage, before he was dragged screaming from the packed courtroom.
April DeBoer and Jayne Rowse, plaintiffs from Michigan in Obergefell v. Hodges, speak to the media
Outside, a crowd of more than 1,000 people gathered on the steps of the court, sparring over the issue, with those favoring legalised gay marriage outnumbering their opponents.
“Homo sex is a sin,” read one demonstrator's placard while nearby a man shouted into a microphone that gays violate the laws of God as a group of same-sex advocates tried to drown him out by singing The Star-Spangled Banner.