- Delaney Ryan/Daily
By Emma Kerr, Summer Editor in Chief
Published April 28, 2015
The U.S. Supreme Court heard oral arguments Tuesday in a group of cases challenging same-sex marriage bans in Michigan and several other states. The case — which will likely be decided by the end of the Court's session in June — has the potential to legalize same-sex marriage in all 50 states.
The Supreme Court has consolidated several cases from four different states under the case titled Obergefell v. Hodges. DeBoer v. Snyder, the case challenging Michigan’s same-sex marriage ban, is one of these cases, and its outcome will be determined by the Supreme Court’s decision.
The Courts are considering two questions: the first asks whether the 14th amendment requires states to legalize marriage between two people of the same sex and the second asks whether a state is required to recognize a same-sex marriage that is legal in another state. The Court’s ruling on the second question will be of no consequence if the court rules same-sex marriage legal in the United States under the 14th Amendment.
In January 2012, Michigan residents April DeBoer and Jayne Rowse filed a lawsuit in the U.S. District Court, challenging Michigan’s ban on adoption by same-sex couples.
In an interview with The Michigan Daily, Rep. Jeff Irwin (D–Ann Arbor) said he is optimistic the Supreme Court will rule in favor of making same-sex marriage constitutional.
“It’s certainly an exciting day, and the excitement about the ruling, that hopefully will come out in favor of marriage equality, is also mixed with gratitude for April DeBoer and Jayne Rowse who took their role as parents so seriously that they have taken on discrimination and the government — to add Bill Schuette — and everyone really, to try to get equal rights for their children, which I think is fabulous.”
Irwin also said the Supreme Court hearings will have a positive impact on Michigan residents who have experienced instances of discrimination.
“There are going to be thousands of people in Michigan who have been discriminated against by their own government, by their own fellow citizens, who are no longer going to be under that burden which I think is a big positive for them, their families — it’s a big positive for the state of Michigan to step out of the shadows of discrimination and embrace the concept that love is love, regardless of who’s a part of it.”
Question 1: the 14th Amendment and same-sex marriage
Attorney Mary Bonauto, the lawyer representing the pro-same-sex marriage cases, began by stating that relationships between same-sex partners, like those of heterosexual couples, are the foundation of family in society.
“If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity,” Bonauto said.
Justice Anthony Kennedy questioned Bonauto’s argument that same-sex couples are denied the right to join the institution of marriage. He emphasized that Bonauto is suggesting a change in the definition of marriage, which he said has been defined for millennia as the union between a man and woman.
“You are not seeking to join the institution, you are seeking to change the institution,” Kennedy said.
In response, Bonauto, compared the rights of same-sex couples to the historical change in women’s rights.
“The question is whether gay people share that same liberty,” Bonauto said. “The place of gay people in our civic society is something that has been contested for more than a century, and in the last century, immigration exclusions, the place of gay people in public employment and federal service, these are all things that have been contested”
Justice Samuel Alito also addressed the way Bonauto characterized DeBoer v. Snyder as a case primarily aimed toward demeaning gay men and women.
“How do you account for the fact that, as far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?” Alito asked. “Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”
Bonauto said even if the past rulings denying same-sex marriage weren’t directly meant to be demeaning, they encompass moral judgements and stereotypes about homesexual people.
“The Michigan statute and amendment certainly went out of their way to say that gay people were in some sense antithetical to the good of society,” Bonauto said.
In explanation of the extensive history in which same-sex marriage was not recognized, Bonauto said she believes “times can be blind” and that the stereotypes that from past should not dictate the justices’ decision today.
Justice Antonin Scalia discussed mixed-race marriages, arguing that they are not comparable to same-sex marriage cases because not all states or societies banned mixed-race marriages.
Solicitor General Donald Verrilli Jr., who argued for the same-sex couples on behalf of the Obama administration, also drew from historical debates, particularly comparing the changing rights and roles of gay men and women throughout history to that of Blacks. In March, the Obama administration and the Ohio and Michigan Democratic parties sent amicus briefs briefs to the Supreme Court indicating their support for same-sex marriage.
The justices also discussed potential repercussions of ruling same-sex marriage bans unconstitutional. Alto asked Bonauto how a distinction could be made between same-sex marriage and other forms of marriage, such as polygamy.
“Number one, I assume the states would rush in and say that when you're talking about multiple people joining into a relationship, that that is not the same thing that we've had in marriage, which is on the mutual support and consent of two people,” Bonauto said. “The question is one of, again, assuming it's within the fundamental right, the question then becomes one of justification. And I assume that the states would come in and they would say that there are concerns about consent and coercion.”
Chief Justice John Roberts discussed other forms of marriage that may be questioned in the future following the Court’s decision on same-sex marriage. He specifically referred to the rapid increase in public acceptance of same-sex marriage in recent years.
The Court then discussed religious concerns of implementing same-sex marriage legalization, specifically for association with religion and religious institutions.
“If one thing is firm, and I believe it is firm, that under the first amendment, that a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at,” Bonauto said.
In regard to judges’ concerns about whether it is the Supreme Court’s place to make this decision, Bonauto said, “In terms of the question of who decides, it's not about the Court versus the States. It's about the individual making the choice to marry and with whom to marry, or the government.”
Tony Perkins, president of the Family Research Council, offered an alternative perspective on the matter. In an article published after the hearing ending, Perkins said society would not accept the Supreme Court redefining marriage.
“Simply put, the plaintiffs asked the Supreme Court to take the extraordinary step of departing from all of recorded human history and forcing a redefinition of civilization’s most fundamental human relationship upon an unwilling nation,” he said.
Perkins also said each state should have the right to determine whether they will recognize same-sex marriages.
“The states must be left free by the U.S. Supreme Court to define marriage as the union of a man and a woman,” concluded Mr. Perkins.
Question 2: states’ requirements to recognize same-sex marriage
The second question the justices considered regards whether the 14th Amendment requires a state to recognize a marriage if it was lawfully licensed and performed out of state.
Douglas Hallward-Driemeier, the attorney for the petitioners in favor of legalizing same-sex marriage, opened with his argument against allowing one state to not recognize a same-sex marriage that is legal in another state.
“The question 2 petitioners are already married,” Hallward-Driemeier said. “They have established those enduring relationships, and they have a liberty interest that is of fundamental importance to these couples and their children. A state should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so.”
Scalia said the state says the institution is specifically heterosexual marriage, but Hallward-Driemeier argued the state’s institution is simply the institution of marriage.
“The point I'm making, your honor, I think is demonstrated by what has happened in those states where, by court order, states have had to permit same-sex couples to marry,” Hallward-Driemeier said in response. “All that has happened under their laws is that they have had to remove gender specific language and substitute it with gender neutral language.”
Hallward-Driemeier distinguished the second question being considered by the Court from the first question by pointing out that question 2 concerns couples who are already married as opposed to couples who hope to be married.
Chief Justice Roberts challenged Hallward-Driemeier, saying his argument for question 2 is in opposition with his previous argument during the hearing for question 1.
“The argument that was presented against them is, ‘You can't do this, we've never done this before, recognized same-sex marriage.’ And now you're saying, ‘Well, they can't not recognize same-sex marriages because they've never not recognized marriages before that were lawfully performed in other states,’” Roberts said. “You've got to decide one or the other if you win.”
Roberts added that if the petitioners were to lose in the first question, then the states would not have to accept marriages from other states because they would not have to recognize them as marriages in the first place.
In response to Roberts’ point, Hallward-Driemeier said it is problematic to try both questions separately. Hallward-Driemeier said even if the Court is in favor of the petitioners regarding question 2, failure in question one would compromise that victory.
Joseph Whalen, the attorney for the respondents, argued that it is not the obligation of states to recognize the marriage laws of other states.Whalen and the justices also debated whether the jurisdiction of states over same-sex is marriage is a matter of law or judgment.
Justice Sotomayor asked Whalen if he saw a fundamental difference between creating a marriage and recognizing a marriage.
“You don't think there's any difference in terms of the rights of people? If states regularly don't say that the prerequisites to marriage in our state are not necessarily against public policy and they have said it for age differences, they have said it for a lot of things, why — why would the gay marriage issue be so fundamental that that can lead them to exclude a whole category of people from recognition?” she asked.
Whalen also argued that the question at hand in this case is the definition of marriage and that the Court should not compare how states handle same-sex marriage with how they have handled other types of marriage in the past.
Whalen argued that, given the discussion is about a marriage that is not between a man and a woman, it is a state's best interest to decide if it will recognize same-sex marriages.
“Our position is that so long as we're talking about a marriage from another state that is not the man-woman definition, that it is simply the state's interest in maintaining a cohesive and a coherent internal state policy with regard to marriage that justifies not recognizing those marriages. Otherwise, as — as the question that was put earlier indicated, any resident of the state could go to another state, get married, come back and demand to have their marriage recognized,” he said.
Whalen also discussed how the case affects parents. He referenced Tennessee, where the definition of a parent is based on biology.
“That marital presumption of parentage has its foundation in biology. It has its foundation in the man-woman relationship,” he said.
Upon this point, Judge Sotomayor asked whether the same rules apply for adoption.
“In the adoption context, you have to understand adoption and the traditional definition of marriage, they work in tandem. They work together,” Whalen said. She added that adoption occurs when there is a breakdown in the effort to link children with their biological parents
This discussion relates to DeBoer v. Snyder. DeBoer and Rowse separately adopted one son and two daughters, respectively, but were unable to jointly adopt their children because Michigan law only grants joint parent adoption rights to married couples, and does not recognize same-sex marriages.
After the U.S. Court of Appeals for the Sixth Circuit upheld Michigan’s ban last November, the Supreme Court decided to review the pending cases in January 2014. The Sixth Circuit Court decision reversed a district court decision that struck down the ban. The Sixth Circuit Court’s reasoning for striking down the ban was that proponents for same-sex marriage were not justified in making the definition of marriage a constitutional issue.
In March 2014, U.S. District Judge Bernard Friedman struck down the Michigan Marriage Act, saying it was unconstitutional because it did not protect gays and lesbians equally. Immediately after the decision, Michigan Attorney General Bill Schuette (R) requested an emergency stay.
During oral arguments Tuesday, Whalen said while it is within the states’ rights to expand the definition of marriage, expecting another state to recognize marriages officiated elsewhere compromises the states’ constitutional rights to self-govern.
Justices are expected to continue deliberating on the case throughout the next few weeks.
Summer News Editor Anastassios Adamopoulos contributed reporting to this story.