The Most Telling Quotes From the Obergefell v. Hodges Oral Arguments
Oral arguments took place Tuesday in Obergefell v. Hodges, the potentially landmark case that could require states to issue marriage licenses to same-sex couples and/or recognize those performed elsewhere in the country.
Through their questions, the Supreme Court highlighted the central question in this debate: Is marriage a right that should be afforded to all people, regardless of whom they choose to marry. Here are some of the justices' best quotes from that first half of oral arguments:
Chief Justice John Roberts
Early in the session, Roberts posited that were the court to recognize same-sex marriages, the definition of the word would change. After hearing an opening argument by Mary Bonauto on behalf of those petitioning for same-sex marriage, he pointed out that, up until very recently, the word has always meant the union of a man and a woman:
Well, you say join in the institution. The argument on the other side is that they're seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.
My question is: You are not seeking to join the institution. You are seeking to change what the institution is. The fundamental core of the institution is the opposite sex relationship, and you want to introduce to it a same-sex relationship.
Justice Anthony Kennedy
Kennedy, considered a swing vote on the issue of gay marriage, quickly circled around a word that would be returned to repeatedly throughout the session, "millennia," in the context of how long the word "marriage" has referred to a heterosexual relationship:
One of the problems is, when you think about these cases, you think about words or cases and a word that keeps coming back to me in this case is, is, "millennia" plus time. First of all, there has not been really time so the respondents say for the federal system to engage in this debate, the separate states. But on a larger scale, it’s been, it was about the same time between Brown and Loving that’s between Lawrence and this case. It’s about 10 years. And so that’s time for the scholars and the commentators and the bar and the public to engage in it. But still, 10 years is, I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it’s very difficult for the court to say "Oh well, we know better."
Later, Kennedy sounded more empathetic to gay couples:
Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.
Justice Samuel Alito
Alito also went along with the "millennia" theme, bringing up how homosexuality, in some forms, was accepted in ancient Greece, though not in the form of marriage:
But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was it was well accepted within certain bounds. But did they have same-sex marriage in ancient Greece?
Justice Stephen Breyer
Breyer, who is likely to vote in favor of same-sex marriage, asked why, at this moment, states can no longer reserve the institution for opposite-sex couples:
The opposite rule has been the law everywhere for thousands of years, among people who were not discriminating, even, against gay people. And, suddenly, you want nine people outside the ballot box to require states, that don't want to do it, to change what you've heard -- is change what marriage is to include gay people. Why can not those states at least wait and see what in fact doing so in the other states is or is not harmful to marriage?
Justice Ruth Bader Ginsburg
Ginsburg made the argument that marriage is not the same institution it was thousands of years ago. It's no longer about the subordination of a woman to a man. She argued that the definition has already changed, and further changes would be no threat to heterosexual marriages:
All the incentives, all of the benefits that marriage provides will still be available. So you won't be taking away anything from heterosexual couples. They will have the very same incentive to marry, all the benefits that come from marriage that they do now.
Justice Elena Kagan
Kagan questioned the focus on the definition of marriage, when, in every other Supreme Court case about marriage, the focus has been on the right itself:
The right to marry: We’ve had, we had Loving, we had Zablocki, we had Turner. In all these cases what we’ve talked about is a right to marry. We didn’t try to define the right more particularly. Is there a right to interracial marriage? Is there a right to marry if you’re a prisoner? We just said there’s a right to marry that is fundamental and that everybody is entitled to it unless there’s some good reason for the state to exclude it, exclude them. So why shouldn’t we adopt the exact same understanding here?
The second half of oral arguments dealt with whether states should be required to recognize same-sex marriages. Kennedy did not speak as often during this half.
Alito asked why why states would not be required to recognize other types of marriages that could hypothetically become legal in other states, returning to his theme of primitive customs:
What if it's not a plural relationship? What if one State says that individuals 19 can marry at the age of puberty? So a 12-year-old female can marry. Would a State -- would another State be obligated to recognize that marriage?
Justice Antonin Scalia
After hearing the arguments that states with "traditional marriage" shouldn't have to recognize marriages performed in other states, Scalia happily rattled off a part of the Constitution that seems to contradict that:
What about Article IV? I'm so glad to be able to quote a portion of the 20 Constitution that actually seems to be relevant. "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." Now, why doesn't that apply?
Justice Sonia Sotomayor
Sotomayor asked why states would refuse to recognize same-sex marriages when they recognize other marriages performed in other states:
I'm sorry. You don't see a fundamental difference between creating a marriage and recognizing a marriage? You don't think there's any difference in terms of the rights of people? If States regularly don't say that the prerequisites to marriage in our State are not necessarily against public policy–and they have said it for age differences, they have said it for a lot of things, why -- why would the gay marriage issue be so fundamental that that can lead them to exclude a whole category of people from recognition?
As is his custom, Justice Clarence Thomas stayed silent throughout the oral arguments.
The Supreme Court will give its decision in June.
—Greg Stohr contributed to this article.
CORRECTION: A previous version of this story incorrectly spelled "Obergefell."