Good morning and welcome to our live blog of oral argument updates. Thanks for joining us.
Eric will be with us in a moment to share his observations from the first twenty minutes.
While we wait, here's a photo that Fabri took this morning.
Hi All -- Just reporting down from the lawyers' lounge with the first batch of updates from oral argument
A reminder that it's very hard to judge where things are going from argument, especially the first 20 minutes, and especially in a case like this, where the Justices no doubt have a lot on their minds
Ginsburg opened the questioning, asking the petitioners what they would do with the "historic deference" shown to the States when it came to marriage, which
the Court mentioned in Windsor
(A protestor has just been removed from the Courtroom -- it came immediately after the petitioner's argument. Hard to hear what he's saying, and he's been removed).
After Ginsburg's Q, the Chief Justice went next. The petrs had said they were looking to "join the institution of marriage." The chief objected that perhaps they were not looking to redefine it, not join it. And he emphasized that he had looked up all the definitions he could find, and it was always a man and a woman
Justice Kennedy said he had "a word on his mind .. and that word is millennia"
He pointed out that the definition of marriage had prevailed for millennia and it seemed a fast change; on the other hand, he noted that the time between Lawrence and this case was about equal to the time between Brown and Loving -- this raised the question for him of whether this might all be too fast to redefine such a long standing institution
This fed into a broad set of questions from many of the conservative justices about how many different societies and cultures had excluded gay couples from marriage, and whether we would condemn all those states and societies as being "irrational" and "invidious"
Hi all. I've just come down from the lawyer's lounge in the wake of our protestor. As I stepped out, I could hear the man continuing to shout as the guards escorted him from the courtroom and into the building. The Supreme Court building is not the best, acoustically, so it was hard to make out what he was saying, but it sounded like an anti-same-sex marriage rant.
As I'm down here, I'll start working on some of your questions while Eric gives his summary.
When the petitioners (and Justice Sotomayor) pointed out that gays and lesbians had been treated quite poorly in some of those societies, Justice Alito pointed out that Plato had written approvingly of homosexual relations, even thought the Greeks limited marriage to heterosexual couples.
One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live
After Eric left the lounge, there was one interesting exchange between Justice Scalia and two of his more liberal colleagues. Scalia asked whether, if petitioners win, a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding. Bonauto answered yes. Scalia pressed the point though, arguing that he could not understand how a state could permit somebody to hold a license to marry people if that person would not exercise the power consistently with the Constitution. After a little more back-and-forth, Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination. Justice Breyer then chimed in and quoted the First Amendment. Ultimately, Justice Scalia seemed satisfied that a minister could refuse to perform those weddings.
Near the end of my stay, Justice Alito raised questions about how the logic of the opinion could exclude a polygamous couple of two men and two women -- all of whom were consenting adults and fully aware of what they were getting into (suppose, he said, they were all lawyers). The petitioners answered by pointing out that this would require a far greater disruption to the institution, including questions of divorce and child custody that would be rather fraught.
For those interested in the legal doctrine, the petitioners' opening was very much about discrimination and equality, but many questions elicited responses about "liberty" and "dignity." The questions were fairly free floating; not a lot to indicate whether the Justices were thinking more in terms of equal protection or a due process right to marriage.
Bonauto closed her argument with a neat turn of phrase. The Court had said that the question is "who decides" whether same sex marriage will be lawful: the courts or the states? She responded that the choice is not between the Court and the state, but instead whether the individual can decide who to marry, or whether the government will decide for him.
To answer a few questions about how the live-blog is working: we had four lawyers (Eric, me, Kevin, and Tom) in the lawyer's lounge, where the audio is piped in. As developments take place, we are sending people out to update you. But once we leave, we can't go back in. As of now, Eric and I have left. Tom will leave close to the end of the first part of the argument. Kevin will leave later. So for now, we will answer your questions until Tom gets here--and then you'll get some new info.
One very interesting aspect of the early argument was that it was primarily a set of questions about what "marriage" means as an institution, and accordingly, whether it is "irrational" or "invidious discrimination" to exclude gays and lesbians. As a consequence, you had some Justices emphasizing the "millennia long" definition of marriage as between a man and a woman, and other Justices -- like Ginsburg -- emphasizing the relatively new character of egalitarian marriage, now sponsored by the state governments, on which gays and lesbians were seeking to enter. You also had a kind of quirky historical dispute about whether ancient societies with their heterosexual definition of marriage could not be trusted (because they generally discriminated against gays and lesbians), or whether they could be, because they were generally more open to homosexuality outside the marriage context (Alito asked this question about Ancient Greece). There was a parallel line of questioning about whether bans on interracial marriage were as consistent as the "millennia long" definition of marriage as uniting a man and woman. Doctrinally, this all seemed to float somewhere above the bottom line question of whether states were discriminating against gays and lesbians or somehow marking them as less favored members of society.
A few people have asked when we can expect a decision. The short answer is that we will get one by the end of June, but we can't predict exactly when. Because the case is being argued toward the end of the Term, I would expect it to come out on or close to the last day.