The Supreme Court appeared sharply divided Tuesday over whether to legalize gay marriage in the United States, as the justices wrestled with questions of discrimination and tradition in the most closely watched arguments of the term.
As expected, the blockbuster case fractured the high court, with liberals on the bench voicing support for gay marriage and conservatives backing a series of state bans on the practice.
But the two justices seen as the most likely swing votes — Chief Justice John Roberts and Justice Anthony Kennedy — asked tough questions to lawyers for both sides, leaving uncertainty about where they would ultimately land.
And even some members of the courts’ liberal wing questioned whether the matter be should be left to voters — rather than the court — to decide.
Justice Stephen Breyer said heterosexual marriage has been the accepted law for thousands of years.
“Suddenly you want nine people outside the ballot box to require states that don’t want to do it to change what marriage is to include gay people,” he said. “Why can’t these states at least wait and see whether if in fact doing so in other states is or is not harmful to marriage?” he asked.
Justice Anthony Kennedy, who is often the swing vote on the court, said he keeps coming back to the word “millennia” when thinking about how long marriage has been considered a union between a man and a woman.
Though about a decade has passed since gay rights were first challenged in court, he questioned whether that’s enough time for the separate states to engage in the debate.
“I don’t even know how to count the decimals when we talk about millennia,” he said. “This definition has been with us for a millenia. It’s very difficult for the court to say, oh well we know better.”
But Kennedy also called into question the states’ arguments that same-sex marriage could undermine an institution rooted in the having of children.
“Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage,” he said. “We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”
At times during the unusually lengthy two-and-a-half-hour arguments, at least five out of the nine justices appeared sympathetic to gay couples wanting the same benefits as heterosexual couples.
Justice Ruth Bader Ginsburg, for example, asked how affording gay couples the same marital benefits could harm heterosexual marriages.
“They would have the very same incentive to marry, all the benefits that come with marriage, that they do now,” she said.
To date, roughly three dozen and the District of Columbia allow same-sex marriage, while 13 states have adopted state bans to keep marriage a union between a man and a woman.
The case, Obergefell v. Hodges, stems from a 6th Circuit Court decision to uphold bans on gay marriage in Ohio, Tennessee, Michigan and Kentucky. The ruling put an end to the string of victories same-sex couples have had in challenging state bans in federal courts and ultimately pushed the high court to take up the issue it had been avoiding.
Supporters of same-sex marriage argue that the high court’s 2013 ruling in the United States v. Windsor could indicate how the court will rule come June. The 5-4 decision, which struck down restrictions to federal benefits for same-sex couples under the Defense of Marriage Act (DOMA), was hailed as a win for the gay community.
The court has refused to rule on gay-marriage bans until now, despite several chances to take up the issue.
Obergefell centers on two questions: whether states are required to license a marriage between two people of the same sex and whether states have to recognize same sex-marriage licenses from other states under the 14th Amendment.
Ginsburg suggested that the latter question would be “moot” if the court issues a more sweeping ruling in favor of gay marriage.
Still, some of court’s conservative members seemed concerned about what other types of marriage states would be forced to recognize if a ruling in favor of the couples was handed down
Scalia, specifically, asked about polygamists that get married in countries that allow polygamy.
Attorney Douglas Hallwad-Driemeier also arguing on behalf of the couples said states could assert justifications for not recognizing certain marriage licenses, but his reasoning only sparked more questions on when exceptions could be made.
“What if one state says that individuals can marry at the age of puberty?” Justice Samuel Alito asked. “Would another state be obligated to recognize that marriage?”
“Probably not,” Hallward-Driemeier said.
Gay rights advocates, who have compared the fight for marriage equality to the civil rights movement of the 1960s, argue that the 14th Amendment of the Constitution provides them equal protection and due process under the law to marry.
Going into Tuesday’s arguments, many observers predicted a win for same-sex marriage supporters.
Justices, however, made clear their reservations about such a ruling.
Chief Justice John Roberts noted that states have quickly been changing their opinions on gay marriage. He pointed to Maine, which passed a gay marriage ban by referendum in 2009, but enacted a law legalizing gay marriage in 2012.
“I mean, that sort of a quick change has been a characteristic of this debate, but if you prevail here, there will be no more debate,” he said.
The court will hand down its ruling in the landmark case by late June.
This story was updated at 4:30 p.m.