Six Key Comments Justices Made in Gay Marriage Arguments
The U.S. Supreme Court earlier Tuesday heard lengthy arguments on same-genre marriage. The two transcripts of the oral arguments have been released by the court.
The transcripts make for riveting reading. Below are six of the more provocative questions from the justices to the lawyers. (We didn’t include the answers, but they’re easy to find in the transcripts.)
JUSTICE STEPHEN BREYER to Mary Bonauto, counsel for the petitioners [Transcript 1, Page 16]:
[T]he opposite view 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 cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage?
JUSTICE SAMUEL ALITO to Ms. Bonauto [17]:
Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license? [Page 17]
CHIEF JUSTICE JOHN ROBERTS to Ms. Bonauto [21]:
One of the things that’s truly extraordinary about this whole issue is how quickly has been the acceptance of your position across broad elements of society.
The situation in Maine, I think, is characteristic. In 2009, I guess it was by referendum, whatever, they banned gay marriage. In 2012, they enacted it as law. I mean, that sort of quick change has been a characteristic of this debate, but if you prevail here, there will be no more debate. I mean, closing of debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.
JUSTICE ELENA KAGAN to John J. Bursch, counsel for respondents [53]:
Mr Bursch, suppose this: Suppose that there’s a State with a very procreation centered view of marriage of the kind that you’re talking about. And it you know, so emotional commitment and support, all of these, the State thinks are not the purpose of marriage and they want their marriage licenses to be addressed only to the things which serve this procreation purpose. And so they say, well, we’re not giving marriage licenses to anybody who doesn’t want children. So when people come in and ask for a marriage license, they just ask a simple question: Do you want children? And if the answer is no, the State says, no marriage license for you. Would that be constitutional?
JUSTICE STEPHEN BREYER to Mr. Bursch [58-59]:
The other thing I that you will have a view on, and will be helpful to me, is there is an argument being made, if not by the government and I’d like your response to it that after all, marriage is about as basic a right as there is; that the Constitution and Amendment Fourteen does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law; and that to take a group of people where so little distinguishes them from the people you give the liberty to, at least in terms of a good reason for not to, and you don’t let them participate in that basic institution, that that violates the Fourteenth Amendment. . . . I’d like your response to that aspect of the other side’s argument.
CHIEF JUSTICE JOHN ROBERTS to Mr. Bursch [62]:
I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different genre. Why isn’t that a straightforward question of discrimination?
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