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Supreme Court Justices appear divided on same-sex marriage

Nick Duffy April 28, 2015

Legal experts are poring over transcripts of today’s US Supreme Court arguments on same-sex marriage, looking for early indications of the way the Court will fall on the issue.

The nine Supreme Court Justices today heard oral arguments in a ground-breaking case concerning marriage bans in the states of Michigan, Ohio, Tennessee, and Kentucky, in the first large-scale Supreme Court action on the issue since a ruling in 5-4 favour of equality during 2013’s United States v Windsor.

As the nine Justices previously tipped in favour of equality on the Windsor case – striking down parts of the federal Defense of Marriage Act – advocates are tentatively hopeful that the battle could bring same-sex marriage to all 50 states.

However, after two and a half hours of oral arguments, it is clear the case will be far from a ‘slam dunk’ for equality.

Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito – all of whom previously dissented to oppose same-sex marriage in the Windsor case – appeared just as firm in their opposition, quashing some hopes for a more conclusive verdict.

At one point, Justice Alito questioned the difference between same-sex marriage and polygamy – asking what would stop a three-person marriage also demanding legal recognition.

Justice Antonin Scalia was just as frank in his views, stating: “I’m concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons. They are not likely to change their view about what marriage consists of.”

Concerningly, Justice Anthony Kennedy – who cast the deciding vote in the Windsor case – seemed to have reservations about introducing same-sex marriage in all states without having time to see the potential impact.

He noted at one point “the word that keeps coming back to me is ‘millennia’… the definition [of marriage] has been with us for millennia”, while same-sex marriage is a far newer innovation.

He added: “If we’re not going to wait, it’s only fair to say we’re not going to consult the social science.”

However, experts pointed out that a robust line of questioning does not necessarily mean that the Justice will dissent on the issue – as he often questions from all sides and defies expectations.

Justice Ruth Bader Ginsburg – one of the most liberal voices on the court – spoke up to a rebut warnings against ‘changing’ the definition of marriage – by citing a time when women were property.

She said: “You wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-­sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.

“There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian.  And same-­sex unions wouldn’t fit into what marriage was once.”

Halfway through the arguments, a man interrupted proceedings, screaming the words “homosexuality is an abomination”.

The Justices are expected to rule on the issue in June.

More: Anthony M Kennedy, Antonin Scalia, Associate Justice, Chief Justice of the United States, civil partnership, civil union, Clarence Thomas, Elena Kagan, equal marriage, Gay, gay weddings, John G Roberts Jr, Justice Alito, lesbian, lesbian wedding, marriage, marriage equality, Notorious RBG, Ruth Bader Ginsburg, same sex weddings, Samuel Anthony Alito Jr, sonia sotomayor, Stephen G Breyer, Union, US, wedding

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