Live blog: Obergefell v. Hodges
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Good morning and welcome to our live blog of oral argument updates. Thanks for joining us.
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Eric will be with us in a moment to share his observations from the first twenty minutes.
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While we wait, here's a photo that Fabri took this morning.
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Hi All -- Just reporting down from the lawyers' lounge with the first batch of updates from oral argument
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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
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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).
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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
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Justice Kennedy said he had "a word on his mind .. and that word is millennia"
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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
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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"
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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.
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As I'm down here, I'll start working on some of your questions while Eric gives his summary.
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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.
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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
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Is the audio going to be released today? Or just Friday like usual
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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.
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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.
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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.
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On the docket list with proceedings and orders, what exactly does “VIDED” mean? I’d guess it has something to do with the consolidation of cases. Are there circumstances in which a brief or document in a consolidated case would not be vided?
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Has Kennedy chimed in with any other questions, in addition to the one about millenia?
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So you'd say that the outcome is still largely a blank space, then?
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How does the definition of marriage play into the equal protection's basis analysis [even for rational basis]?
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Is the argument bifurcated as to the first question and the second? Is full faith and credit reserved for the last half?
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Conventional wisdom says this will be a victory for same-sex marriage. If so, why are the comments by Kennedy and Roberts so disheartening for those who support same-sex marriage?
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Is it reasonable to assume the Justices have already passed around draft opinions prior to today's oral argument?
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Is there a reason the oral arguments are only 2.5 hours long? That seems like a really short time to present a case that's been argued for over a decade.
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FWIW: We will have a bunch more information when we get a report from the second half of argument, but I did not find Breyer's question (reported in the tweet below) at all surprising. He was strongly encouraging the petitioner to answer a question OTHER Justices had been posing. No doubt Justice Breyer himself was interested in whether the Court should be the one who decides the question at issue, or the voters instead, but he also wanted the petitioners to get their views out for other Justices as well.
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A lot of people are asking what Justice Kennedy's references to "millennia" mean. The short answer is that we really don't know because so far, the people blogging have only seen Justice Kennedy question one side in the case, so we don't know how he will address the other side. The normal practice is for Justices who are thinking hard about a case to ask questions of both sides (Kennedy often does, the Chief Justice too), so I wouldn't read very much into it. Obviously it's not as clear a signal as if he had said, "You are clearly right," or "You are clearly wrong," but such clarity is rare.
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If court decides, said Roberts “there will be no more debate” on same-sex marriage, which “can close minds.” #SCOTUS
— Ryan J. Reilly (@ryanjreilly) April 28, 2015 -
Are there any indications one way or another whether this could be a unanimous (or nearly unanimous) decision? Or should we assume it will come down to Kennedy or Roberts breaking a tie?
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One point for people asking questions: the software allows you to
either ask your question as a new question, or you can respond to an existing thread. It's much harder for us to deal with responses to existing threads, so I would ask your questions as a new post -- we're much more likely to see it that way. -
Tejinder, do you know what percentage of SC decisions are unanimous?
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And here for your reading pleasure is Tom with some new info.
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Starting with Justice Kennedy, his questions -- not surprisingly -- would encourage the plaintiffs.
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For those of you with questions about how the mechanics of the day work, check out Amy's "Reporter's guide"
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He said that his sense was that a principal purpose of marriage was to afford dignity to the couples, which is denied to same-sex couples.
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He also said that he thought that the fact that same-sex couples raise adopted children cut strongly against the state's arguments.
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That said, the balance between Justice Kennedy's comments in the first and second halves of the argument leaves things in a state of flux. You couldn't confidently predict the outcome.
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