Chris Geidner of Buzzfeed:
At Tuesday’s marriage arguments over same-sex couples’ marriage rights, the majority of the court appeared to be comfortable with Justice Anthony Kennedy’s understanding of human dignity as including gay people’s equal treatment under the law.
While Kennedy, who is considered the key swing vote in the case, did not make any unambiguous statement about the end result of the case, he harshly questioned the state of Michigan’s argument that it should be allowed to exclude same-sex couples from marriage.
At one point, Kennedy commented to Michigan’s lawyer that its law banning same-sex couples from marrying “assumes” that those couples can’t have the same “more noble purpose” as opposite sex couples have for entering marriage.
Although questions were asked, including by Kennedy, about the length of the understanding of marriage as only an institution between one man and one woman, Kennedy also noted that “about the same time” passed between the Supreme Court’s decision ending “separate-but-equal” with regards to racial discrimination and its landmark decision ending interracial marriage as has passed between the Supreme Court’s decision ending sodomy laws and today’s arguments.
Chris Johnson of the Washington Blade:
(Justice) Kennedy, who write numerous gay rights cases for the Supreme Court including the 2013 decision against the Defense of Marriage Act, expressed a wariness about a decision instituting the right to gay nuptials across the country, saying a word to which he keeps returning on marriage is “millennia.”
“This definition has been with us for millennia, and it’s very difficult for the court to say we know better,” Kennedy said.
But Kennedy also offered a contrasting view when John Bursch, the Michigan attorney defending a state’s right to refuse marriage licenses to same-sex couples, delivered his arguments.
Bursch drew upon as an example of need for the law number of children being born out of wedlock, saying since 1970, the out-of-wedlock birth rate has gone from 10 percent to 40 percent, but Kennedy shot back, insisting that statistic “cuts quite against” having a ban on same-sex marriage.
“Under your view, it would be very difficult for same-sex couples to adopt these children,” Kennedy said.
In a discussion about the benefits of marriage, Kennedy also spoke about same-sex couples wanting access to the institution because it has a “noble purpose” and is a “dignity that can be fulfilled.”
Adam Liptak of the New York Times:
Justice Kennedy said he was concerned about changing a conception of marriage that has persisted for so many years. Later, though, he expressed qualms about excluding gay families from what he called a noble and sacred institution. Chief Justice John G. Roberts Jr. worried about shutting down a fast-moving societal debate.
Justice Samuel A. Alito Jr. asked whether groups of four people must be allowed to marry, while Justice Antonin Scalia said a ruling for same-sex marriage might require some members of the clergy to perform ceremonies that violate their religious teaching.
Justice Stephen G. Breyer described marriage as a fundamental liberty. And Justices Ruth Bader Ginsburg and Elena Kagan said that allowing same-sex marriage would do no harm to the marriages of opposite-sex couples.
