WASHINGTON – The Supreme Court’s key swing vote gave both sides reason for hope Tuesday as the high court considered whether same-sex couples have the right to wed.
In oral arguments, Justice Anthony Kennedy joined with conservative justices who questioned whether courts should step in to overrule the minority of U.S. states that still ban gay and lesbian couples from marrying.
Kennedy noted that while same-sex marriage has gained legal ground in the United States for just over 10 years, marriage has been understood as one man and one woman for “millennia-plus time.”
“It’s very difficult for the court to say, “We know better,’ ” Kennedy told Mary Bonauto, a lawyer representing same-sex couples.
His question suggested ideological sympathy with the court’s conservatives – Justices Antonin Scalia, Clarence Thomas and Samuel Alito and Chief Justice John Roberts – who voiced support for letting states handle the issue legislatively.
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Addressing Bonauto, Roberts said, “You’re not seeking to join that institution, you’re seeking to change what the institution is.”
Scalia said the issue is not whether there should be same-sex marriage, “but who should decide the point.”
He expressed concern about the court imposing a requirement on the states that “is unpalatable to many for religious reasons.”
Yet Kennedy expressed skepticism about an argument by John Bursch, attorney for the states that ban same-sex marriage, that letting gay couples marry would harm traditional marriages.
“That assumes that same-sex couples could not have a more noble purpose,” he shot back, sounding irritated.
In a hearing interrupted by a protester who yelled that gay-marriage backers will “burn in hell,” Kennedy also voiced worry about adopted children in same-sex households in which only one partner is considered a parent because of a gay-marriage ban.
“Under your view, it would be very difficult for same-sex couples to adopt those children,” Kennedy told Bursch.
The cases before the court come from Kentucky, Michigan, Ohio and Tennessee, four of the 14 remaining states that allow only heterosexual marriage.
Those states had marriage bans upheld by the federal appeals court in Cincinnati in November. That is the only federal appeals court that has ruled in favor of the states since the Supreme Court in 2013 struck down part of the federal anti-gay marriage law.
Same-sex couples now can marry in 36 states and the District of Columbia.
Three of the court’s liberals – Stephen Breyer, Sonia Sotomayor and Elena Kagan – seemed to back the court stepping in on behalf of gay marriage. The proceedings encouraged same-sex marriage supporters who exchanged chants with opponents outside the court for hours on Tuesday.
Jo-Ann Shain, 62, and Mary Jo Kennedy, 59, of Brooklyn Heights, who wed the day New York legalized same sex marriage in 2011, said the hearing left them hopeful the court is headed toward a 5-to-4 ruling in their favor.
“This is the culmination of many years of struggle,” Shain said.
A few feet away, a group of about 20 ultra-Orthodox Jews from the New York City area demonstrated against gay weddings.
“The practice of our religion is under threat,” said Rabbi David Feldman, of Monsey, Rockland County. “We are here to plead with our government leaders and our judges: Please, give us our religious freedom. Please let us remember that there is a God in the world.”
The hearing also drew the attention of Democratic presidential hopeful Hillary Clinton, who sent out a fund-raising email citing her support for gay marriage.
On social media, Clinton temporarily changed her campaign logo to rainbow flag colors.
Mayor de Blasio encouraged the Supreme Court not to deny gay couples their basic rights.
“It’s past time that the Supreme Court recognizes what many cities and states have already made clear: Marriage equality is a fundamental human right all people deserve, no matter where they live or who they love,” the mayor said.
The court is expected to decide on the issue by June.
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With News Wire Services
