I listened to the full 140-minute audio of the oral arguments in Tuesday’s hearings on same-sex marriage before the US Supreme Court. While listening, my reaction was somewhat different from the commentators I had linked to earlier so I thought I would put forward my own impressions of the exchanges and the tactics employed by the lawyers for the various sides. I will give my predictions for the outcome in a later post, maybe later today but more likely tomorrow.

The court held separate hearings on two questions:

1. They spent 90 minutes on the so-called ‘marriage question’ that asked: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2. They spent 50 minutes on the so-called ‘recognition question’ that asked: Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

(I linked to the full audio on Tuesday. For those who would like to hear an abbreviated 36-minute version, you can go here. Or you can read the transcripts here and here.)

In the first case involving the marriage question, it was clear that justices Kennedy, Roberts, and to a lesser extent Breyer were uneasy with making what seemed to them to be a momentous decision to redefine marriage to include same-sex couples rather than simply making it more inclusive. While this may seem like a semantic issue (any change can be called a redefinition), this question clearly seemed important to them. They kept asking whether it was appropriate for them to change something (like marriage as being between a man and a woman) that had existed for millennia. They pointed out that same-sex marriage had never existed in the past, even in societies where homosexuality was not disparaged, and had only come into being in 2001 in the Netherlands. Wouldn’t it be better to wait and see rather than take an irrevocable step into uncharted waters?

Mary L. Bonauto, the lawyer arguing in favor, did make the good point that tradition by itself was an insufficient reason for any policy and that you still need a reason to maintain it. She could have pointed out (but didn’t) that there have been different forms of marriage than just one man and one woman, since in some societies in a man could have several wives (polygyny) and some have allowed a woman to have many husbands (polyandry). So given the multiple forms of marriage that already exist, adding one more category would not be such a stretch even if that particular form had never existed before. She also said, and Roberts agreed, that ‘wait and see’ was not a neutral position since it had a negative impact on thousands of same-sex couples who would be denied the benefits of marriage. There was no guarantee that the issue would be resolved politically in all the states any time soon and that this uncertainty could continue for a long time.

Justice Ginsburg pointed out that in the past the two people in a marriage fitted into a definite hierarchy where it was understood (and often legally required) that one of them (the man) was dominant in the relationship and the other (the woman) was subordinate. Same-sex marriage was inconceivable in that inegalitarian system so that the fact that it had not existed before was not surprising. It took the recognition that the men and women were equal in the relationship and the nullification by the Supreme Court in 1982 of laws such as Louisiana’s Head and Master rule that had imposed such a hierarchy to even allow for the possibility of same-sex marriage.

Justice Alito asked on what basis, if they were to allow same-sex marriage, they could deny marriages of two men and two women. Bonauto gave some practical objections such as the complications that would arise about inheritance and child custody and so on. But I thought that a more fundamental answer could also have been given. Many of the rules that govern society are arbitrary. Arbitrariness by itself is not indefensible. But it is the using of different arbitrary standards for different classes of people that is the problem. As an analogy, setting a speed limit of 55 mph is arbitrary. One could reasonably ask why it should not be 54 or 56 or any other number. But that is not sufficient grounds for invalidating any given speed limit. But having limits of 55 mph for women and 65 mph for men would be wrong. This is because we do not have constitutional principles that demand that we treat all numbers equally but we do demand that all people be treated equally, at least in theory.

John J. Bursch, the lawyer opposing same-sex marriage, had the task of having to explain why there was such a tight link between opposite-sex couples and marriage that breaking it would cause serious problems. Breyer said that he could think of two reasons for opposing same-sex marriage, tradition and religious, and invited Bursch to offer other reasons. To my astonishment, Bursch declined to accept even those two reasons as part of their argument. Instead he said that the sole purpose of marriage was based on biology, in order to encourage procreation and to strengthen the bonds between children to their biological parents and nothing more. It was all and only about biology, and that society had a vested interest in furthering that and thus had a rational basis for allowing only opposite-sex couples to marry. He went all in with that argument, saying that society had no interest in love or commitment or to confer dignity and solemnity to a relationship through marriage. If same-sex marriage were allowed, he said that would imply a devaluing of those biological goals and result in fewer people getting married and having children and more children born out of wedlock who would have weaker links with their biological parents.

I was surprised by this approach. The reasoning was specious and went against all accepted understandings of marriage. Even traditional marriage vows only ask the couple to honor, love, and cherish one another (or similar sentiments) and say nothing about children. In addition, it seemed to suggest that one could deny marriage to couples who could not have children or did not want them, and that the bonds between parents and adopted children were of secondary importance. Under questioning, he even seemed to be open to the possibility of it being constitutional for states to limit marriage only to those couples who could procreate and excluding couples who for whatever reason could not procreate.

This approach seemed to me to be a tactical mistake for two reasons. One is that it stirred Kennedy who had argued among other things in the 2013 DOMA case United States v. Windsor that it was the dignity of marriage that was being denied to the same-sex plaintiffs in that case, using the word ‘dignity’ nine times in his majority opinion and at one point writing:

Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.

In response to Bursch’s assertion, Kennedy responded, “I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage.” In fact the Solicitor General Donald Verilli, also appearing in support of same-sex marriage, explicitly used the word dignity several times in support of his case, clearly aiming at swaying Kennedy.

I thought Verilli argued well, ending:

And what I would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable, untenable to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals. Gay and lesbian people are equal. They deserve the equal protection of the laws, and they deserve it now.

The other reason I thought Bursch made a tactical mistake is that Roberts has two adopted children and Bursch slighting such relationships may have been jarring to his ears. Kennedy at one point told Bursch “you had some premise that only opposite-sex couples can have a bonding with the child. That’s that was very interesting, but it’s just a wrong premise.” Bursch denied implying this and at another point accepted the importance of adoption but his heavy emphasis on the biological relationship of parent and child may not have endeared him to Roberts.

On the second hearing on the recognition issue, this was tricky because both lawyers had to argue on the presumption that the first issue had been decided against same-sex marriage since otherwise their case would be moot. In this set of arguments, I thought that Douglas Hallward-Driemeier, the lawyer for same-sex marriage, fared much better than Joseph F. Whalen, the opponent’s lawyer.

Hallward-Driemeier pointed out instances of same-sex couples married in states that legalized it, who had children and had planned their lives and careers on the presumption that their marriage was stable, with one person foregoing their career to be a stay-at-home parent. They were then transferred by their employers (in some cases the military) to states that did not recognize their marriage and suddenly their world was turned upside down as their marriages and parenthood were no longer recognized. He argued that “it doesn’t advance the interests of the children of opposite sex couples to destroy the marriages that provide stability to the children of same-sex couples who are already married under the laws of other States”. He did concede that there were some situations where the state has a compelling interest in denying such recognition, such as if another state allowed marriages for 12-year olds, because in that case protecting the interests of minors who might not be able to give informed consent was an important state interest.

Justice Scalia raised the issue of Article IV of the US Constitution that says that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state” and that “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” and asked Whalen why that article did not require recognition of marriages carried out in other states. Whalen replied that the article applied to public acts, records, and judicial proceedings and not to laws, and that the laws of one state need not be recognized by another state. The issue arose as to whether marriage was a law (that need not be recognized) or a judgment (a judicial proceeding that had to be recognized). Ginsburg dryly noted the irony that currently a divorce in one state was recognized in all states but a marriage was not.

At one point, Alito seemed to suggest a compromise by which states could choose to not allow same-sex marriages to be carried out in their own state but recognize such marriages carried out by other states. This was not expanded upon but as Roberts said at an earlier point, allowing that would mean that a same-sex couple could simply hop over to a state that allowed them to marry, get married, and then return and that thus “one State would basically set the policy for the entire nation.”

The justices seemed less interested in the recognition question that in the marriage question, as evidenced by the fact that the second set of hearings ended with ten minutes left to spare. Or maybe it was because it was 12:30pm and they were tired and wanted lunch.

Those were my takeaways from listening to the hearings. I’ll give the various possible outcomes and my odds for each in a separate post.