U.S. Supreme Court hears arguments on marriage equality

Hazel Park couple among the petitioners

By: Andy Kozlowski | C&G Newspapers | Published April 30, 2015

The eyes of the nation were on the U.S. Supreme Court on April 28 as it heard arguments for and against same-sex marriage. The cases were brought forth by Michigan, Kentucky, Ohio and Tennessee.  

The first issue, directly involving Michigan, is whether it’s constitutional to deny same-sex couples the right to marry. The other issue is whether all states must recognize same-sex marriages conducted in other states.

On the first issue, the state maintains that the voters should decide, as they did in 2004 when they banned same-sex marriage in Michigan. But the petitioners — April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park — say the ban violates their constitutional rights to due process and equal protection under the law and is discrimination based on sexual orientation, treating their family like second-class citizens.

Only 13 states still ban same-sex marriage: Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas. The other 37 states and the District of Columbia now allow same-sex couples to marry. 

The case is being called Obergefell vs. Hodges, since Ohio has the lowest assignment number among the consolidated cases that were heard. While the court usually limits arguments to an hour, it set aside 2 1/2 hours beginning at 10 a.m. that Tuesday.

It is uncertain which way the court will go. Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor are considered liberal, while Samuel Alito, Antonin Scalia and Clarence Thomas are considered conservative. It is uncertain which way Anthony Kennedy and Stephen Breyer will vote on this issue, as well as Chief Justice John Roberts.

A decision is not expected until the end of June.

The Michigan case
The question of state bans was given the first 90 minutes. Mary Bonauto, the civil rights director at Gay & Lesbian Advocates & Defenders in Boston, went first, arguing for marriage equality. According to transcripts from the court made available to the media, Bonauto began by saying the abiding purpose of the 14th Amendment is to prevent relegating classes of people to second-tier status. As such, same-sex couples should be able to join in the institution of marriage.

Justice Alito asked if Bonauto believes the state’s intent was to demean gay people by excluding them from the institution of marriage. Bonauto replied that it has that effect, but regardless of whether there was a conscious effort to demean them, the statutes banning same-sex marriage entail certain stereotypes about gay people.

Justice Alito said that prior to the 20th century, as far as he knows, there was no nation or culture that recognized same-sex marriage. He asked if those decisions were all based solely on irrational stereotypes and prejudices.

“I don’t know what other societies assume,” Bonauto said. “But I do believe that times can blind, and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded.”

Justice Ginsburg noted that there was a time when marriage was a “dominant and subordinate relationship” in which the woman was obligated to follow the man. Times have changed, she said, and marriage is no longer seen that way. Now women and men are equal partners in the relationship.

Bonauto agreed, and said this supports the notion that while marriage has long been seen as a union between one man and one woman, it can change as society changes.

“I mean, for centuries we had … this (system) where a woman’s legal identity was absorbed into that of her husband … and again, because of equality and changing social circumstances, all of those gender differences in the rights and responsibilities of the married pair have been eliminated,” Bonauto said.

Justice Scalia said the issue is not whether there should be same-sex marriage, but who should decide the point. Justice Kennedy again asked about past nations and cultures, and how they handled marriage.

“There were (opposite-sex) marriages prior to the United States forming, and we recognize that,” Bonauto said. “But when our nation did form into this union in 1787, and then when it affirmed the 14th Amendment in 1868, that’s when … our nation collectively made a commitment to individual liberty and equality.”

Justice Breyer asked Bonauto why she thinks “nine people outside the ballot box” should require all states to allow same-sex marriage. He asked why the states banning it can’t wait and see how it works out for the other states.

Bonauto pointed to Loving v. Virginia (1967), a landmark civil rights decision in which the U.S. Supreme Court ended laws banning interracial marriage. She noted that it was unpopular with many people at the time, but the court did what it did out of respect for constitutional rights.

“As Virginia resisted in the Loving case … and said, ‘Please wait and see,’ 80 percent of the American public was with Virginia on (banning interracial marriage),” Bonauto said. “But again, it was the question of the individual liberty of the person to do something that was considered a profound change in its time.”

Justice Alito brought up the “slippery slope” concern: If same-sex marriage is allowed, what’s to prevent, say, marriage between four people — an arrangement that’s existed in other societies and still exists in some today. Bonauto said that with polygamy, there are concerns of “coercion and consent” that don’t apply to same-sex marriage between two consenting adults, as well as other “family disruption issues” like child custody between multiple wives.

Where families are concerned, Bonauto added that social science consensus is that the sexual orientation of the parent has no effect on the outcome of the child.

Chief Justice Roberts voiced concern about the court deciding the issue.

“I mean, closing of debate can close minds,” Roberts said. “People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

Bonauto later said, before sitting down, “It’s not about the court versus the states. It’s about the individual making the choice to marry and with whom to marry, or the government.”

U.S. Solicitor General Donald Verrilli Jr. spoke after Bonauto on behalf of the U.S. Justice Department. He is also in favor of marriage equality, which he described as a dignity issue. He said the court must decide what the 14th Amendment requires.

Otherwise, “You may have many states … in which gay couples can live with equal dignity and status, but you will have a minority of states in which gay couples will be relegated to demeaning second-class status, and I don’t know why you would want to repeat that history,” Verrilli said, referring to racial segregation.

“Gay and lesbian people are equal,” he later concluded. “They deserve equal protection of the laws, and they deserve it now.”

The state’s response
John Bursch, former state solicitor general, spoke in defense of the state bans.

“This case isn’t about how to define marriage. It’s about who gets to decide that question,” Bursch began. “Is it the people acting through the democratic process, or is it the federal courts?”

Justice Breyer had a question for Bursch.

“Marriage, as the states administer it, is open to vast numbers of people who both have children, adopt children, don’t have children, all over the place,” Breyer said. “But there is one group of people whom they won’t open marriage to. … That is people of the same sex who wish to marry. And so we ask, why?

“The answer we get is, ‘Well, people have always done it (that way),’” Breyer said. “You know, you could have answered that one the same way we talk about racial segregation. Or two, because certain religious groups do think it’s a sin. … There’s no question about their sincerity, but is a purely religious reason on the part of some people sufficient? And then when I look for reasons three, four and five, I don’t find them. Where are they?”

Bursch replied that the first two points — how it’s been done in the past, and religious reasons — are not the state’s reasons.

“Our answer … is that the marriage institution did not develop to deny dignity or to give second-class status to anyone,” Bursch said. “It developed to serve purposes that, by their nature, arise from biology.”

He explained that in a world without marriage, men and women would still procreate, but they wouldn’t be attached to each other in any social institution.

“The marriage view on the other side here is that marriage is all about love and commitment. And as a society, we can agree that that’s important, but the state doesn’t have any interest in that,” Bursch continued.

Justice Kagan interrupted and said she knows where Bursch is going with this from the briefs that he filed: that the state’s interest is to regulate procreation through marriage. Bursch agreed.

Justice Sotomayor asked how withholding marriage from same-sex couples would increase the value of marriage to opposite-sex couples. She noted that there are fathers and mothers who, despite having the benefits of marriage, abandon their families and their children.

Justice Kagan added that the states need a reason for excluding same-sex couples.

“The reason why there’s harm if you change the definition (of marriage),” Bursch said, “(is that) in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage.”

Bursch proceeded to explain that changing the definition of marriage could change how people perceive it over the generations. He described two identical families, each with a 3-year-old child. The child in one family grows up believing marriage binds a couple to a child forever; the other grows up believing marriage lasts only until the commitment fades.

Justice Breyer noted that there are plenty of married couples who don’t or won’t have children.  Justice Kagan asked Bursch if the state should ask opposite-sex couples if they want to have children and only let them get married if they do.

Bursch admitted that would be an unconstitutional invasion of privacy, but said a married couple that says they don’t want children is still more likely to have children once married.

Justice Ginsburg asked whether a 70-year-old couple wanting to get married should be denied marriage since they can’t procreate. Bursch simply replied that the 70-year-old man, at least, is still capable of having children.

Returning to the issue of changing attitudes, Bursch noted that the out-of-wedlock birthrate in the country has gone from 10 percent in 1970 to 40 percent today. Justice Sotomayor said that same-sex marriages are too recent to have caused that. She also noted that since Massachusetts changed its laws to allow same-sex marriage, rates have remained constant. Bursch questioned whether such data was useful, but Justice Kennedy said Bursch was the one who brought up statistics.

Bursch later brought up Chief Justice Roberts’ concern about the court deciding.

“When you enact social change of this magnitude through the federal courts, it’s cutting off that dialogue (between voters) and it’s saying one group gets their definition, and the other is maligned as being irrational or filled with animus,” Bursch said. “And that’s not the way our democratic process is supposed to work.”

Justice Kagan replied that the United States is not a pure democracy, but a constitutional democracy, with limits on what people can decide.

“This is one of those cases where we have to decide what those limits are,” Kagan said, “or whether the Constitution speaks to something and prevents the democratic processes from operating purely independently.”

Returning to the reason for the state’s position, Bursch reiterated that it’s not meant to deprive anyone of dignity.

“The state doesn’t care about your sexual orientation. What the state cares about is that biological reality (of increased procreation through marriage),” Bursch said. “… Your Honors, these are obviously very emotional issues where reasonable people can disagree. … But this court taking this important issue away from the people will have dramatic impacts on the democratic process.”

In closing
After Bursch finished, Bonauto had three minutes for a rebuttal. She said the idea that marriages will change if same-sex marriage is allowed is false. Currently, opposite-sex couples can marry at 70 or 90 because of their commitment. It doesn’t matter whether they can or will procreate. Their marriage is honored all the same.

“It is only the same-sex couples who are foreclosed from marrying,” Bonauto said.

She also said that allowing same-sex couples to marry won’t discourage opposite-sex couples from continuing to marry and have children.

“Those two could not be further apart,” Bonauto said. “People make their own decisions.”

Bonauto finished by saying that if the state is really concerned about the stability of the family and the well-being of children, it undermines that by denying marriage to same-sex couples.

“You are denying (the children) those protections and that security that would come from having married parents,” Bonauto said.


The road to the Supreme Court

The challenge to Michigan’s 2004 voter-approved ban on same-sex marriage started three years ago with April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park.

The two nurses have lived together for the past decade and jointly own their residence. They have four adopted children, some of whom have special needs. They want to marry so they can share joint guardianship of their children, ensuring that the children have the same rights under each mother.

In March 2014, Judge Bernard Friedman, of the U.S. District Court for the Eastern District of Michigan, sided with DeBoer and Rowse and ruled that the ban violates the Equal Protection clause of the 14th Amendment of the U.S. Constitution, often interpreted as an attempt to honor the concept that “all men are created equal.”

Shortly thereafter, the state appealed Friedman’s decision with the Sixth Circuit Court of Appeals. Three months after hearing both sides’ arguments, the Sixth Circuit delivered its opinion Nov. 6. Two of the three Sixth Circuit judges — Jeffrey Sutton and Deborah L. Cook, both appointed by former President George W. Bush — sided with the state, while Judge Martha Craig Daughtrey, an appointee by former President Bill Clinton, sided with the plaintiffs.

In essence, Sutton and Cook said the people should decide whether same-sex couples have equal rights, while Daughtrey said the point of the judiciary is to protect the rights of the minority against the whims of the majority. Even so, the opinion of Sutton and Cook acknowledged that marriage equality seems inevitable.

The decision made the Sixth Circuit the first federal appellate court in over a year to rule against marriage equality, going against rulings in the Fourth, Seventh, Ninth and 10th circuits, among others. Its decision also overturned lower court decisions out of Kentucky, Ohio and Tennessee.

The plaintiffs from those three states, along with Michigan, petitioned the U.S. Supreme Court. On Jan. 16, 2015, the Supreme Court announced that it would take the case. Now that the court heard both sides April 28, the nation waits for the Supreme Court to deliver a decision, expected sometime before the end of June.