WASHINGTON — Supreme Court justices appeared divided Tuesday during historic arguments over the constitutionality of gay marriage, with Justice Anthony Kennedy returning to a familiar role as the court’s pivotal vote.
Chief Justice John Roberts — who shocked conservatives with his swing vote to uphold Obamacare — this time seemed to lean more closely to conservative justices.
The arguments unfurled inside a packed courtroom on Tuesday while supporters and opponents of same-sex marriage rallied outside — with one protester even interrupting the arguments from within.
Many questions on Tuesday centered around the definition of marriage and whether the decision to authorize or ban gay marriage should be left to voters in individual states or decided by the judicial system.
Kennedy, often the bench’s swing vote, showed his arguments in favor and against legalizing same-sex marriage as he questioned both the plaintiff and the defense.
On the anti-gay marriage side, Kennedy pointed out that for “millenia” the definition of marriage has been between a man and a woman, and called efforts to legalize same-sex marriage a redefinition of that institution.
But still, he pointed out that who is to say that justices on the court should conclude, “Oh well, we know better.”
And he also brought up the need to consider the dignity of gay individuals and same-sex couples — a point he has brought up in past gay rights cases in which he voted in favor of that cause.
Roberts appeared to lean conservative, but asked tough questions of both sides — signaling still that he could go either way. Roberts is one of the court’s conservative justices, but has been the deciding vote in past cases, including when the Supreme Court upheld the Affordable Care Act as constitutional.
One tough take from Roberts came when the Court’s chief justice said pro-gay marriage advocates are “not seeking to join the institution, you’re seeking to change what the institution is.”
And while Roberts acknowledged “how quickly” society has accepted same sex marriage — with state after state authorizing gay marriages and public opinion favoring legalizing same-sex marriage — he also said that a Court decision could close the debate and close minds.
Steve Vladeck, a constitutional law professor at American University and CNN analyst, said Tuesday’s session revealed few surprises to close observers of the court who have expected Kennedy and Roberts would be the swing votes on this case.
“We heard both of them in the arguments today showing support for both sides of the argument, showing skepticism for both sides of the argument,” Vladeck said. “I think the headline here is it’s about what we expected. It’s going to be close, it’s going to be divisive and it’s going to come down to Kennedy and Roberts.”
Vladeck also cautioned against reading too much into the justices’ questioning and comments during the oral arguments, which account for just a few hours in the multi-month process of deciding such an consequential case.
Lawyers and justices also debated whether same-sex marriage should be decided by the courts or left to the people via ballot, the method preferred by conservatives who argue states should be allowed to ban same-sex unions.
But Justice Sonia Sotomayor, a liberal on the Court, took that argument and flipped it — arguing that people should be allowed to decide on same-sex marriage simply by deciding who they want to marry.
The emotion of the case also flooded into the courtroom, as one protester seated inside began shouted and screaming in the middle of the arguments.
“If you support gay marriage you will burn in hell,” the protester shouted before police quickly detained the man and dragged him out of the courtroom while he continued to scream.
“Rather refreshing actually,” conservative Justice Antonin Scalia quipped as the man was dragged out to laughter in the courtroom.
Lawyers with the pro-gay marriage organization Lambda Legal, which represented two of the cases wrapped into the Supreme Court case “an awe-inspiring and singular moment in the march towards justice.”
“It was incredibly moving to gather in the Supreme Court chamber with their parents and all 30 plaintiffs in these historic cases. Mary and Doug were fantastic, making a compelling and to my mind irrefutable case on their behalf,” Lambda Legal’s Alphonse Gerhardstein said of the lawyers who argued in favor of same-sex marriage before the Court on Tuesday.
U.S. Solicitor General Donald Verrilli, who represented the Obama administration’s views, also presented arguments in favor of same-sex marriage, focusing on equal protection under the 14th amendment and likening bans on same-sex marriage to handing second-class status to gay Americans.
“I don’t know why we would repeat history,” he said.
John Bursch, who argued the states’ claim that the courts should not overturn bans on same-sex marriage, told the justices Tuesday that the decision should be left up to the political and democratic process.
Bursch also argued that making same-sex marriage a constitutional right would change the meaning of marriage and impact the interest of states in furthering the institution of marriage to encourage procreation.