WASHINGTON -- Supreme Court justices broke along familiar ideological lines Tuesday as they considered whether same-sex couples have a constitutional right to marry, with Justice Anthony Kennedy in a familiar role as the apparent decider in a landmark gay-rights case.
Kennedy asked tough questions of both sides during 2½ hours of arguments over anti-gay-marriage laws from Michigan, Ohio, Kentucky and Tennessee.
Why should nine unelected justices change the definition of marriage as only between a man and a woman when that definition has existed for "millennia?" Kennedy asked attorney Mary Bonauto, who is representing gay couples in the case.
On the other end, he questioned John Bursch, representing Michigan and other states with same-sex marriage bans, about their procreation-centered view of marriage. He asked why same-sex couples do not deserve the "same ennoblement" of their relationships that others receive.
The questioning illuminated the justices' conflicting views on history, tradition, biology, constitutional interpretation, the democratic process and the role of the courts in prodding social change.
Justice Stephen Breyer described marriage as a fundamental liberty. Justices Ruth Bader Ginsburg and Elena Kagan pressed the opponents of gay marriage to say how, exactly, extending marriage to same-sex couples could harm heterosexual couples who want to marry.
Ginsburg was blunt on that point.
"You are not taking away anything from heterosexual couples" if the state allows gay couples to marry, she said.
Bursch argued in response that if people no longer believe that "marriage and creating children have anything to do with each other," there will be more children born out of wedlock, which he said was a problem for society.
Meanwhile, Justice Samuel Alito asked whether groups of four people must be allowed to marry, and Justice Antonin Scalia said a ruling for same-sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching.
The solemn, hushed nature of the proceeding was shattered by a protester who shouted that the Bible teaches that those who engage in homosexuality will "burn in hell for eternity." He could be heard shouting for minutes even after security personnel dragged him from the courtroom.
The justices are considering two questions: whether the Constitution requires states to issue marriage licenses to same-sex couples and whether states must recognize same-sex marriages performed in other states where they are legal.
Bonauto argued that limiting marriage to a man and a woman deprives gay couples of a valued right. To deny it leaves them with a "stain of unworthiness," she said.
Bonauto received a boost from Ginsburg, who pointed out that legal views of marriage have changed to make them more "egalitarian."
But Bonauto faced repeated questions about the historical nature of marriage as a bond between genders -- which Breyer described as "the law everywhere for thousands of years."
"Suddenly," Breyer said, "you want nine people outside the ballot box to require states to change [this]."
Kennedy also said the definition of marriage "has been with us for millennia."
"It's very difficult for the court to say, 'Oh, we know better,'" he said.
The recognition of a constitutional right for gays to marry would mark the culmination of a major change in the nation's jurisprudence and in public opinion about gay rights.
Same-sex marriages were practically unheard of in the nation until a Massachusetts court decision cleared the way for unions there just a dozen years ago. Now, more than 70 percent of Americans live in states where same-sex couples are allowed to marry, according to estimates.
The questions raised in the cases that the court will consider were left unanswered in 2013, when the justices last confronted the issue of same-sex marriage. A slim majority of the court said at the time that a key portion of the federal Defense of Marriage Act -- withholding recognition of same-sex marriages -- was unconstitutional and in a separate case allowed same-sex marriages to resume after they were halted in California.
Since then, courts across the nation have struck down a string of state prohibitions on same-sex marriage, many of them passed by voters in referendums. One notable exception is the Cincinnati-based federal appeals court that left intact the restrictions in the four states at issue.
Many of those court decisions compared the prohibitions to the ones on interracial marriage that the Supreme Court struck down in 1967 in the case Loving v. Virginia. Opponents said the right for homosexuals to marry is not found in the Constitution and thus is left to the democratic process in the individual states.
When the justices declined in October to review the string of victories same-sex marriage proponents had won in other parts of the country, it meant the number of states required to allow gay marriages grew dramatically, offering the kind of cultural shift the court often likes to see before approving a fundamental change.
Same-sex couples may now marry in 37 states and the District of Columbia.
Windsor case
The Michigan case now before the Supreme Court involves the issuance of marriage licenses to gay couples. The cases from Tennessee and Ohio concern whether states must recognize same-sex marriages performed in other states where such unions are legal. And Kentucky offers cases that touch on licensing and recognition.
In U.S. v. Windsor, the 2013 case striking a key part of the Defense of Marriage Act, the decision written by Kennedy said the federal government could not refuse to recognize or provide benefits to people in same-sex marriages that were conducted in states where they were legal.
Dozens of lower-court judges nationwide have read Kennedy's opinion -- in which he was joined by Justices Ginsburg, Breyer, Kagan and Sonia Sotomayor -- to mean that similar state laws violate constitutional rights as well.
Withholding federal recognition of same-sex married couples, Kennedy wrote in Windsor, places them "in an unstable position of being in second-tier marriages" and "demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify."
Kennedy, who sides with conservatives on most issues, is a pivotal member of the court and has written all of its modern decisions protecting gay rights, including the ruling in the case Lawrence v. Texas, which struck down sodomy laws that targeted gay men.
But in his Windsor decision, Kennedy also cited the principles of state autonomy, which states have made central in arguments defending laws and state constitutional amendments defining marriage as only between a man and a woman.
Chief Justice John Roberts, who dissented from Kennedy's opinion in U.S. v. Windsor, noted that the issue of state bans was not before the court in that case.
The current cases will cause Kennedy to balance his support of gay rights with his strong views on federalism. He noted both in his Windsor opinion and said the Defense of Marriage Act was written to convey moral disapproval of homosexuality and "a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states."
Few thought the issue would return so quickly to the Supreme Court. Within six months of the Windsor decision, the first federal judge had struck down a ban, in Utah. Quickly, judges nationwide, and panels of appeals courts in Denver, Chicago, San Francisco and Richmond, Va., struck down state bans.
But in November, a panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati upheld the bans in Kentucky, Michigan, Ohio and Tennessee.
Circuit Judge Jeffrey Sutton, writing for himself and Judge Deborah Cook, rejected the Windsor analysis that led other appeals courts to strike down the bans on same-sex marriage.
In his decision, Sutton repeatedly returned to the principle of democratic action, saying advocates of same-sex marriage would be better off persuading their fellow citizens than by asking federal judges to force the issue.
"When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers," Sutton wrote. "Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way."
Roberts also said Tuesday that people would be more accepting of change achieved through the democratic process, rather than imposed by courts. Yet the chief justice also questioned the states' argument.
"If Sue loves Joe and Tom loves Joe, Sue can marry him, and Tom can't. Why isn't that a straightforward question of sexual discrimination?" he asked.
The combined cases now before the Supreme Court are Obergefell v. Hodges. The court expects to issue a ruling in late June.
Information for this article was contributed by Robert Barnes of The Washington Post; by Adam Liptak and Michael D. Shear of The New York Times; and by Mark Sherman, Connie Cass, Anne Flaherty and Sam Hananel of The Associated Press.
A Section on 04/29/2015