Here are four exchanges from the audio released of the oral arguments on the first question the justices considered: do states have the power to limit marriage? The bottom line consideration here in many ways is, is same-sex marriage a fundamental right and are states that ban same-sex marriages discriminating against gays?
1. A pivotal question for Justice Kennedy
Justice Anthony Kennedy, who is widely expected to be the swing vote on this issue, seemed troubled by the idea of changing the definition of marriage in such short order after marriage has been the same institution for "millennia." This indicates a certain hesitation by Kennedy to legalize same-sex marriage nationwide.
"A word that keeps coming back to me in this case is millennia... This definition has been with us for millennia. And it’s very difficult for the court to say, 'Oh, well, we know better.'"
Kennedy provided his own counterpoint for that question later in the arguments when he questioned the opponents' attorney, John J. Bursch. Kennedy was particularly worried about affording dignity to same-sex couples and their families: he and other justices felt the fact that same-sex couples raise adopted children undermined opponents' arguments that marriage should be restricted to different-sex couples for child-rearing reasons.
Kennedy: I thought that was the whole purpose of marriage—it bestows dignity on both man and woman in a traditional marriage. ... These parties say they want to have that same ennoblement.
Bursch: If we go back to that world where marriage doesn't exist and the state is trying to figure out, how do we link together these kids with their biological moms and dads when possible, the glue are benefits and burdens, but not necessarily dignity.
Kennedy: Well, I think many states would be surprised that with reference to traditional marriages, they're not enhancing the dignity of both the parties. I'm puzzled by that.
Head below the fold for more on the marriage cases.
2. Justice Scalia's obsession over clergy being forced to perform gay marriages
Justice Antonin Scalia worried that if the Supreme Court legalized same-sex marriage as a constitutional right, all clergy members would be compelled to perform such marriages. States, he argued, could carve out exceptions for clergy members, as he questioned the attorney for the proponents of marriage equality, Mary Bonauto.
Scalia: They are laws, they are not constitutional requirements. If you let the states do it, you can make an exception. ... You can't do that once it is a constitutional prescription. ...
Justice Elena Kagan: Maybe I'm just not understanding Justice Scalia's question, but for example, there are many rabbis that will not conduct marriage between Jews and non-Jews, not withstanding that we have a constitutional prohibition against religious discrimination. ... Many, many, many rabbis won't do that.
Bonauto: That is precisely correct.
Scalia: You agree that ministers will not have conduct same-sex marriages?
Bonauto: That is correct, I believe that is firm within the First Amendment.
3. Justice Ruth Bader Ginsburg (#NotoriousRBG) fixates on marriage today as an "egalitarian" institution
Justice Samuel Alito returned to the historical nature of marriage, saying, "until the end of the twentieth century, there never was a nation or a culture that recognized marriage between two members of the same sex.”
But Justice Ginsburg wasn't having it, noting that marriage was once a system in which males dominated and females followed their lead.
"There was a change in the institution of marriage to make it egalitarian. When it wasn't egalitarian, same-sex unions wouldn't fit into what marriage was."
Mary Bonauto, the lawyer arguing on behalf of same-sex marriage rights, piggybacked off of Ginsburg's remark.
That's correct. For centuries we had ... this coverture system where a woman’s legal identity was absorbed into that of her husband, and men and women had different prescribed legal roles. And again, because of equality and changing social circumstances, all of those gendered differences in the rights and responsibilities of a married pair have been eliminated.
4. Mary Bonauto's closing remark, which she slipped into the final few seconds of her argument.
Another big question the justices were grappling with is whether the Supreme Court is the right institution to decide the issue of marriage equality or whether it should be left to the states. Bonauto gave a crafty response to this quandary.
"In terms of the question of who decides—it's not about the court vs. the states. It's about the individual making the choice to marry and with whom to marry, or the government."