Everyone went into the Supreme Court hearing on marriage equality yesterday thinking that the decision was slam dunk. No one left thinking the same. The conservative justices were predictably opposed to the concept (with a special nod to Samuel Alito for suggesting it would lead to incest), and the liberal justices were predictably supportive. Which leaves the swing vote, Anthony Kennedy.
If people were expecting Kennedy to tip his hand during the oral arguments, they were sorely disappointed. If anything, Kennedy’s questioning of lawyers on both sides raised the specter that the final decision, while still positive, may not be quite as sweeping as everyone hoped.
Kennedy made a number of comments during the hearing that are fully in line with his three landmark, maybe even legendary, decisions affirming LGBT equality. He chastised attorney John Bursch, who was arguing on behalf of the states that want their marriage bans upheld, for suggesting that the state didn’t have any interest in same-sex couples’ argument that marriage was about dignifying love, not procreation.
“I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage,” Kennedy said. “It’s dignity-bestowing, and these parties say they want to have that same ennoblement.”
How about we take this to the next level?
Our newsletter is like a refreshing cocktail (or mocktail) of LGBTQ+ entertainment and pop culture, served up with a side of eye-candy.
But at the same time, Kennedy clearly seemed bothered that things have been moving too fast for his comfort. The idea of a historical decision making marriage equality a right seemed a bit much. Changing the definition of marriage is a momentous step, and it’s not clear if Kennedy is ready to take it.
“I don’t even know how to count the decimals when we talk about millennia,” Kennedy said in court. “This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better.’ ”
Now, it’s the justices role to play devil’s advocate in testing legal arguments, and Kennedy may well have been doing that. But it also appears that something deeper was at play in Kennedy’s remarks. As he put it, the “social science” on marriage equality is “too new.”
The irony is that Kennedy set himself up for this very situation two years ago when he wrote the majority decision striking down the Defense of Marriage Act. His colleague Antonin Scalia called Kennedy on this very issue with a kind of clarity that Kennedy himself did not employ.
Kennedy is now faced with a dilemma. His heart seems to tell him that anything that diminishes the dignity of gay and lesbian families is an affront. (It’s worth noting that Kennedy’s mentor was a gay man.)
At the same time, Kennedy is a conservative, a Catholic conservative at that, appointed by former President Reagan. His legal inclination is to rein the courts in, not let them loose. He’s a big proponent of states’ rights, and a ruling nationalizing marriage equality would be a thumb in the eye to a lot of states.
So where does that leave his vote on marriage? It’s hard to say. The idea of Kennedy voting against marriage equality seems impossible to square with his past decisions. But some sort of less-than-sweeping ruling doesn’t seem out of the question. There are two cases before the Court. The second involves the question of whether states that ban marriage equality must recognize same-sex marriages performed elsewhere.
This could provide Kennedy with an out, if he gets cold feet. He could essentially say that gay marriage is okay everywhere; it just has to be performed in states that allow it. It’s a kind of split-the-baby compromise that could garner the votes of even a few conservative justices, including Chief Justice Roberts.
Of course, all that ruling would do is create more chaos, delay the inevitable and deny a lot of couples the right to get married where they live. That’s hardly the most dignifying decision, to use one of Kennedy’s favorite words.
We’ll know soon enough what Kennedy is thinking. But the arguments in the Court were a reminder that even the best allies may have their limits. There’s no question that the country has moved quickly to accept marriage equality.
The question now is whether Kennedy kept pace.
Giancarlo85
As said, Kennedy set himself up for this case and he was forced to take it. And if he was so concerned about states rights, he would have sided with Scalia and Thomas in extending stays. He did not.
Cam
He isn’t really a friend, more somebody who is uncomfortable with us but doesn’t want history to paint him in a bad light. Worrying about moving too fast is not a legal argument, it is the tepid fear of somebody who seems to think that constitutional issues should be mitigated by whether or not Granny wants to have the gays over for dinner.
MarionPaige
Barney Frank referenced, as I recall, how ill advised it was for some gay people to run to the Supreme Court when it wasn’t at all clear that they had the votes to get a decision in their favor.
I mean people have done everything in their power to force the marriage equality issue to The Supreme Court and now they’re wondering how the Court will rule? Why force something to a court when you aren’t confident that you can win?
MarionPaige
Barney Frank also made reference to “The Supreme Court Protecting Gay People From Themselves” by the court narrowing the issues it decided in re Perry. Maybe Kennedy is again trying to protect The Gay Community from Tired Ass White Queens.
1EqualityUSA
MarionPaige, Have the courage to stand and fight. Your way is the sniveler’s way.
Cam
@MarionPaige:
Here is an idea Marion. How about you try hating bigots at least as much as you hate “Tired Ass White Queens”.
Or is your hatred of them, easier because you still have a bucketload of self hate mixed up in there?
Desert Boy
If the US Supreme Court can decide an election and install a clown in the White House, they should have no problem upholding the rights of gay Americans to marry.
martinbakman
Yes, he’s been a friend for 20 years.
I see what this article is getting at, but others expect he was just playing the devils advocate.
Josh447
That was my hit. It’s the final show down so why not play up the drama. That keeps everyone dance’n. To come this far with sugar and spice and then dump emotional arsenic nation wide would be a veritable disaster for the justice system. Riots over police brutality are already lit. I don’t think the justices want to dump more acid on the justice fire.
Not to be overly confident, but I think less worry would be more apt, all things considered.
Dave084
I was fairly certain of a victory for us prior to this hearing but as many others I now put our chance at below 50 percent. If this is left up to the states and democratic process it may well be another 20 years before equality is realized. I’m not sure the responses to the justices questions and concerns were all that well presented. When Scalia regurgitated the bullshit of so many when he feared that preachers could be criminally liable for refusing to perform a SS wedding, why was it not pointed out to him that no church is legally required to officiate a wedding that they disagree with even among opposite sex couples. Churches refuse to marry people because of their own doctrines all the time and I’ve never seen a preacher charged with a crime. And this entire issue is not about church sanctioned marriage. It’s all about civil marriage. When Roberts chimed in and said it seems that we were not seeking to join the institution of marriage but change the institution, it would have wise to point out that even if that were true it is entirely appropriate to tweak or change that which is shown to be inadequate or discriminatory.
Our only hope is Kennedy and I no longer have as much hope in him as I did.
Bad Ass Biker
The main problem is too many Catholics on the Supreme Court.
TCPfrommer
Get with it court, it’s 2015 and gay marriage is Supreme!
Celtic
I doubt we have any real “Friends” on the Court, even among the women. The Justices have no tangible concept of what being a friend to someone actually means.
Jesse Keeton
yes he is. He also reads and they don’t vote til Friday. How about we not post this negative nancy stuff on Facebook. You know just becuase he is a Supreme Court Justice doesn’t mean he don’t read. Giving him bad publicity cannot be good for our cause. This not a way to boost headlines for me. I live in TN and I need my California Marriae Lisence to be recognized. So just delete this story already.
John
A couple of things to remember…
1. The federal gov’t has already accepted your marriage (this is in court because of one district of appeals court). This right cannot be taken away UNLESS they want more lawsuits (you cannot give a right then take it away, remember when they changed the drinking age…they had to set it up to take place in the future, by doing so it made sure no one got the right then took it away, so some were grandfathered and then it progressively altered back.)
2. The word “marriage” is nowhere in The Constitution. So if the argument is who is “entitled” to be married based on a Constitutionality no one is.
3. The Justices have to ask questions to both sides of the debate because they are supposed to appear neutral to the topic and only base their vote on the argument of the question before them. So the questions they ask are truly neither about showing which way they support an issue. It is Devils Advocate.
Personal prediction is the Justices will vote as they have on previous gay issues with the split being the same. No matter the outcome READ the outcome that is written and pick it apart so you can see the perspective used based on each Justices vote. So many people just jump and celebrate the victory and do not read the briefs written by the Justices as to how/why they voted. Be informed.
3.
ethan_hines
All one must do to determine the meaning of mariage is look at it’s etymology (history of words) From Middle English, from Old French mariage,[1] from marier (“to marry”),[2][3] from Latin marito (“to marry”, literally “give in marriage”), from maritus (“lover”, “nuptial”), from mas (“male, masculine, of the male sex”).[4] Equivalent to marry +? -age.
Look at #3 from Mas as in MALE! not female in fact nowhere in the history of the word marriage does the root female exist!
Sansacro
@Bad Ass Biker: Totally. Religious activists. Scalia’s comments about the “refreshing” outburst from the zealot screaming gays will burn in hell was disgusting. The guy’s arrogance and “you can’t touch me” attitude deserves a flogging with scorching red hot rods.
Jaroslaw
@ethan_hines: Hasn’t marriage existed in every country on earth? If so, then Latin origins don’t mean a lot in say, Asia or Africa. They surely had their own native-language words for it.
James Hart
My cousin in Virginia belongs to the same Catholic parish which Kennedy belongs to. He said that Kennedy goes to Mass everyday and is very devout and traditional in his faith.
James Hart
@Bad Ass Biker: You can thank Reagan, Bush 1 and 2, and Obama for that.
Giancarlo85
For those who put our victory at a low level, I don’t agree. The court has gone too far already in not extending stays. They won’t possibly backtrack at this point. I still think 6-3 in our favor.
jackdog111
If the 6th Circuit Court in Cincinnati had not ruled to uphold marriage bans in Michigan, Ohio, Kentucky and Tennessee it probably would not have gone to the supreme court yet. It’s the disagreement among the Circuit Courts that forced the Supreme Court to take up the issue this year.
Jaroslaw
jackdog – I think the 6th circuit ruling to uphold bans was a blessing in disguise. If that doesn’t prove discrimination and ‘confusion’ begging for SCOTUS clarification, what does? Frankly, I have my doubts about the law – even if every state does NOT have SSM, the idea of recognizing a marriage in another state was a no brainer. We recognize marriages from other countries without question. Unless it is a child etc. Sad.
Rob Moore
Why would we consider him a friend. He is first and foremost a loyal Republican. He voted to end sodomy laws. So what? That was as much about a law that targeted straight people as gay people. The whole issue of marriage equality is only for gay people. The only thing of which I am reasonably certain is that he will vote one way or the other. We are fools if we think this is in the bag.
Jaroslaw
@Rob Moore: What Gay history books have you been reading sir? It has been mentioned over and over sodomy laws overwhelmingly targeted Gays. Cute though, when you said you are ‘reasonably certain’ Kennedy will vote one way or the other. I agree, also, it is foolish to think this is in the bag. Corey wrote on another post Texas is working feverishly to pass “religious freedom” laws to forever enshrine discrimination against us even if SSM becomes the law of the land. Sad again.
Saint Law
@Cam: The Marion Paige troll is one lonely tired ass spinster.
dave lopes
Kennedy is doing the right thing by asking tough questions.
The real outcry should be the lack of hisorical knowledge of the lead attorney on the gay marriage side.
She was unable to argue how the definition of marriage has actually changed over time.
We have to remember that a law degree is much like a trade certificate and does not necessarily mean well educated or well rounded.
She should have expected that question and prepare for it.
Giancarlo85
@Rob Moore: He had a key part in the gutting of the DOMA. Who cares if he was appointed by a republican? So was Earl Warren… though Eisenhower said he was his greatest mistake. You are living in fantasy land.
Kennedy is testing the veracity and strength of the arguments by pro-equality lawyers.
By the way, why would I have any outcry over the lead attorney on the gay marriage side? It isn’t about whether marriage has had a changing definiton (which by the way, Ginsburg went over well enough). It’s about treating people equally under the law.
http://thinkprogress.org/justice/2015/04/29/3652468/justice-ginsburg-eviscerates-case-marriage-equality-just-five-sentences/
TCPfrommer
You are absolutely right it is about treating people equally and NOT about gay rights.
tjr101
I find it quite hilarious that Anthony Kennedy would be considered a “friend.” The guy has on numerous occasions sided with cooperate America to the detriment of working, middle class. He may be less ideological than the other conservatives in his ruling on gay rights, but he ain’t no friend.
Giancarlo85
Yea he has sided with big corporations to the detriment of this country.
martinbakman
When it comes to respecting LGBT people’s dignity, Kennedy was always way ahead of the Clintons. Kennedy stuck to his guns. The Clintons’ not so much.
dbmyers
@Giancarlo85: I agree, but I will temper that count because of the question of the Chief Justice’s position. If he goes with fairness and compassion as well as a desire to make history, he may well be the sixth vote, otherwise it could easily go 5-4 for gay marriage – without Chief Justice Robert’s support.
AxelDC
Not only will Kennedy vote for gay marriage, but Roberts will join him for a 6-3 triumph. Only old Republican farts Thomas and Scalia, with minime Scalia, will vote for homophobia.
AxelDC
@AxelDC: I meant mini-me Alito.
1EqualityUSA
Catholic influence on the bench is preventing this from being a slam dunk.
Maude
Have we forgotten the first amendment…..Freedom Of Religion?
The court must also consider weather or not SS marriage violates the first amendment.
As a Gay Christen man,I don’t think it does, unless UNLESS We The Gay People continue to spout the hatred I read here in some of the posts, and a case can be made for “Wait and See” which will set our cause back at least 20 years.
Wait and see, means to watch those States that have already legalized SS Marriage, and see if it results in derogatory consequences that would prohibit a Federal law that would allow such consequences.
That, I think would be an excise in futility, and who knows what the Supreme Court makeup will look like in 20 years?!!
For all we know, it could consist of nine right wingers.
Thread softly, lest you fuck up the works!
Maude
@Maude:
Forgot to mention that I read the entire transcript of last Tuesday’s hearing.
And I was very much surprised at the persuasive legality on the side against
SS Marriage.
As I see it, at best we have only a 50-50 chance.
Now is not the time to make waves.
Maude
@Maude:
Sorry, I didn’t mean, “legality”I should have said, “Argument”.
Jaroslaw
Maude- freedom of religion? The Constitution states Congress shall also NOT establish a religion. Which means you are free to NOT practice any religion. How could a same sex marriage violate the first amendment? Same sex marriage is okay with some/most Quakers,for example, so where is THEIR freedom of religion? Also, could you cite specifically what “hate” you see from “we the Gay people” on this thread? What “derogatory” results are you waiting for from the states which have same sex marriage? What arguments specifically did the anti SSM use that were so persuasive to you? It is hard to imagine you’re really a Gay person since you are so worried about the traditionalists rather than your own rights and freedoms.
1EqualityUSA
Massachusetts is doing fine. All this doom and gloom nonsense is annoying. They cannot base a decision on what might happen. Conjecture has no merit. The principle of equality will stand. Republicans handed the bench politically motivated Catholics who, in turn, want the Republicans to be in power. Ensuring a nice flow of Scalias for the next century is their motive. We are collateral damage. They want what they want.
Bauhaus
@Maude:
You said: “As I see it, at best we have only a 50-50 chance. Now is not the time to make waves.”
I’m so sick of you losers riding on our coattails. As @Saint Law mentioned in a different post (I’m paraphrasing), there should be a two-tier system for the creeps not worthy of the gains we have fought for and won. You don’t deserve any of our victories, you groveling bootlicker.
Jaroslaw
@Bauhaus: Good post – I meant to also say to Maude “there is never a right time to make waves.”