Supreme Court hears historic same-sex marriage arguments

Stage Set for Landmark U.S. Supreme Court Gay Marriage Arguments

WASHINGTON (AP) -- Supreme Court Justice Anthony Kennedy joined conservative colleagues in asking skeptical questions Tuesday as the high court heard historic arguments over the right of gay and lesbian couples to marry.

Kennedy, whose vote is seen as pivotal, said marriage has been understood as one man and one woman for "millennia-plus time." He said same-sex marriage has been debated in earnest for only about 10 years, and he wondered aloud whether scholars and the public need more time.

"It's very difficult for the court to say 'We know better,'" Kennedy told Mary Bonauto, a lawyer representing same-sex couples.

Chief Justice John Roberts said gay couples seeking to marry are not seeking to join the institution of marriage.

"You're seeking to change what the institution is," Roberts said.

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Supreme Court hears historic same-sex marriage arguments
WASHINGTON, DC - JUNE 25: A gay marriage waves a flag in front of the Supreme Court Building June 25, 2015 in Washington, DC. The high court is expected rule in the next few days on whether states can prohibit same sex marriage, as 13 states currently do. (Photo by Mark Wilson/Getty Images)
WASHINGTON, DC - JUNE 25: Supporters for and against gay marriage gather in front of the Supreme Court Building June 25, 2015 in Washington, DC. The high court is expected rule in the next few days on whether states can prohibit same sex marriage, as 13 states currently do. (Photo by Mark Wilson/Getty Images)
Supporters of same-sex marriages cheer outside the US Supreme Court on April 28, 2014 in Washington, DC. AFP PHOTO / MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)
WASHINGTON, DC - JUNE 25: Supporters for and against gay marriage gather in front of the Supreme Court Building June 25, 2015 in Washington, DC. The high court is expected rule in the next few days on whether states can prohibit same sex marriage, as 13 states currently do. (Photo by Mark Wilson/Getty Images)
WASHINGTON, DC - APRIL 28: A couple poses for a photo near the Supreme Court, April 28, 2015 in Washington, DC. On Tuesday the Supreme Court heard arguments concerning whether same-sex marriage is a constitutional right, with decisions expected in June. (Photo by Drew Angerer/Getty Images)
WASHINGTON, DC - APRIL 28: Opponents of same-sex marriage demonstrate near the Supreme Court, April 28, 2015 in Washington, DC. On Tuesday the Supreme Court will hear arguments concerning whether same-sex marriage is a constitutional right, with decisions expected in June. (Photo by Drew Angerer/Getty Images)
Pro and anti-gay rights protest outside the US Supreme Court on April 28, 2015 in Washington, DC. The Supreme Court meets to hear arguments whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo by Olivier Douliery/Getty Images)
Pro and anti-gay rights protest outside the US Supreme Court on April 28, 2015 in Washington, DC. The Supreme Court meets to hear arguments whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo by Olivier Douliery/Getty Images)
Protesters hold pro-gay rights signs outside the US Supreme Court on April 28, 2015 in Washington, DC. The Supreme Court meets to hear arguments whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo by Olivier Douliery/Getty Images)
Supporters of same-sex marriages gather outside the US Supreme Court waiting for its decision on April 28, 2014 in Washington, DC. The US Supreme Court is hearing arguments on whether gay couples have a constitutional right to wed -- a potentially historic decision that could see same-sex marriage recognized nationwide. (Photo credit Mladen Antonov, AFP/Getty Images)
Plaintiff James Obergefell speaks about his case before tomorrow's arguments at the US Supreme Court April 27, 2015 in Washington, DC. Tomorrow the high court is scheduled to hear arguments in the case of Obergefell v. Hodges, that will ultimately decide whether states will still be allowed to ban same sex marriage and refuse to recognize the rights of couples married in other states. (Photo by Mark Wilson/Getty Images)
Human Rights Campaign President Chad Griffin (R) speaks about Plaintiff's James Obergefell (L) case before tomorrow's arguments at the US Supreme Court April 27, 2015 in Washington, DC. Tomorrow the high court is scheduled to hear arguments in the case of Obergefell v. Hodges, that will ultimately decide whether states will still be allowed to ban same sex marriage and refuse to recognize the rights of couples married in other states. (Photo by Mark Wilson/Getty Images)
Anti-gay marriage protesters gather in front of the US Supreme Court Building April 27, 2015 in Washington, DC. The high court is scheduled to hear arguments April 28, in the case of Obergefell v. Hodges, that will ultimately decide whether states will still be allowed to ban same sex marriage and refuse to recognize the rights of couples married in other states. (Photo by Mark Wilson/Getty Images)
People camp on the sidewalk outside the US Supreme Court April 25, 2015 in Washington, DC, to attend the April 28, 2015, US Supreme Court session regarding gay marriage. The Supreme Court meets on April 28 to hear arguments on whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. AFP PHOTO/PAUL J.RICHARDS (Photo credit should read PAUL J. RICHARDS/AFP/Getty Images)
Protesters hold a pro-gay rights flag outside the US Supreme Court on April 25, 2015, countering the demonstrators who attended the March For Marriage in Washington, DC. The Supreme Court meets on April 28 to hear arguments whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo credit Paul J. Richards, AFP/Getty Images)
Participants in the March For Marriage protest outside the US Supreme Court on April 25, 2015, in Washington, DC. The Supreme Court meets on April 28 to hear arguments on whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo credit Paul J. Richards, AFP/Getty Images)
Members of the DC Sisters, the Abbey of Magnificent Intentions, wait for protesters from the March For Marriage outside the US Supreme Court April 25, 2015, in Washington, DC. The Supreme Court meets on April 28 to hear arguments on whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo credit Paul J. Richards, AFP/Getty Images)
Protesters in the March For Marriage arrive outside the US Supreme Court April 25, 2015, in Washington, DC. The Supreme Court meets on April 28 to hear arguments on whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo credit Paul J. Richards, AFP/Getty Images)
A Supreme Court Police Officer approaches a protester wearing a Michelle Obama mask, in a area not allowed for protesters, as the March For Marriage goes on outside the US Supreme Court April 25, 2015, in Washington, DC. The Supreme Court meets on April 28 to hear arguments on whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo credit Paul J. Richards, AFP/Getty Images)
Participants in the March For Marriage pray outside the US Supreme Court on April 25, 2015, in Washington, DC. The Supreme Court meets on April 28 to hear arguments on whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo credit Paul J. Richards, AFP/Getty Images)
Demonstrators with Official Street Preachers hold up anti-homosexual placards in front of the White House in Washington, DC, April 26, 2015. The lengthy fight to allow gay marriage across America may soon be at an end with the Supreme Court set April 28 to consider whether same-sex couples have a constitutional right to wed. Already legal in 37 of the country's 50 states and in the capital Washington, experts say it seems inevitable that the nation's top court will recognize gay marriage. (Photo credit Paul J. Richards, AFP/Getty Images)
Participants in the March For Marriage pray outside the US Supreme Court on April 25, 2015, in Washington, DC. The Supreme Court meets on April 28 to hear arguments on whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo credit Paul J. Richards, AFP/Getty Images)
WASHINGTON, DC - APRIL 28: Pro-gay rights protesters kiss outside the US Supreme Court on April 28, 2015 in Washington, DC. The Supreme Court meets to hear arguments whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo by Olivier Douliery/Getty Images)
WASHINGTON, DC - APRIL 28: Protesters hold pro-gay rights flags outside the US Supreme Court on April 28, 2015 in Washington, DC. The Supreme Court meets to hear arguments whether same-sex couples have a constitutional right to wed in the United States, with a final decision expected in June. (Photo by Olivier Douliery/Getty Images)
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The arguments offered the first public indication of where the justices stand in the dispute over whether states can continue defining marriage as the union of a man and a woman, or whether the Constitution gives gay and lesbian couples the right to marry.

The session was interrupted after about 30 minutes by a protester yelling loudly. He was removed by security.

Justice Antonin Scalia said the issue is not whether there should be same-sex marriage "but who should decide the point." He expressed concern about the court imposing a requirement on the states that "is unpalatable to many for religious reasons."

Justice Stephen Breyer asked if the nation needs more time to "wait and see" whether gay marriage is harmful to society. Bonauto responded that wait-and-see has never been considered a justification for discrimination under the Constitution.

The court was hearing extended arguments, scheduled to last 2½ hours, which also are exploring whether states that do not permit same-sex marriage must nonetheless recognize such unions from elsewhere. Same-sex couples now can marry in 36 states and the District of Columbia.

People on both sides of the issue gathered outside the marble courthouse early Tuesday. Some waved gay rights banners, while others carried placards proclaiming marriage as the union of a man and a woman.

"Homo sex is a sin," read one sign. A man shouted into a microphone that gays violate the laws of God. A group of same-sex advocates tried to drown him out by singing "The Star-Spangled Banner."

Cheers went up in the crowd when the court's doors opened, allowing a lucky few who lined up days ago to get inside.

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Supreme Court hears historic same-sex marriage arguments
(L-R) Jonathon Infante-May hugs his new husband Joseph Infante-May as Bruce-Robert Pocock and John Starkie, also newlyweds, embrace after getting married during a ceremony at the Broward County Courthouse on January 6, 2015 in Fort Lauderdale, Florida. Gay marriage is now legal statewide after the courts ruled that the ban on gay marriage is unconstitutional and the Supreme Court declined to intervene. (Photo by Joe Raedle/Getty Images)
Aymarah Robles (L) adn Deborah Shure show off the marriage license they just received at the Clerk of the Courts - Miami-Dade County Court on January 5, 2015 in Miami, Florida. Gay marriage is now legal statewide after the courts ruled that the ban on gay marriage is unconstitutional and the Supreme Court declined to intervene. (Photo by Joe Raedle/Getty Images)
DENVER, CO - JULY 10: Anna Simon (L) puts the ring on the finger of Fran Simon after it was official, the first same sex married couple to get their license at the Denver County clerk's office where they began issuing same sex marriage licenses July 10, 2014. They are the first official married couple as they self-solemnized at the office. They are the first to go on record with the Denver County clerk's office. (Photo by John Leyba/The Denver Post via Getty Images)
Long-time partners Ann Willoughby, left, and Barb Goldstein, from Durham, North Carolina, leave the Durham County Register of Deeds office in downtown Durham on Wednesday, May 9, 2012, comforting each other after being denied a marriage license. (Harry Lynch/Raleigh News & Observer/MCT via Getty Images)
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The cases before the court come from Kentucky, Michigan, Ohio and Tennessee, four of the 14 remaining states that allow only heterosexual marriage. Those four states had marriage bans upheld by the federal appeals court in Cincinnati in November. That is the only federal appeals court that has ruled in favor of the states since the Supreme Court in 2013 struck down part of the federal anti-gay marriage law.

Kennedy has written the court's three prior gay rights decisions, including the case from two years ago. All eyes are on him for any signals of his intention this time.

It was barely a decade ago that the first state allowed gay and lesbian couples to marry. That was Massachusetts, in 2004. As recently as last October, barely a third of the states permitted it. Now, same-sex couples can marry in 36 states and Washington, D.C., a sign of the dramatic change in public opinion.

At the Supreme Court, the opposing states hoped to reframe the debate.

"This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy: Who decides, the people of each state or the federal judiciary?" John Bursch, representing Michigan, wrote in his main brief to the court.

Other arguments by the states and more than five-dozen briefs by their defenders warn the justices of harm that could result "if you remove the man-woman definition and replace it with the genderless any-two-persons definition," said Gene Schaerr, a Washington lawyer.

The push for same-sex marriage comes down to fairness, said Bonauto, who argued on behalf of the plaintiffs. The people who have brought their cases to the Supreme Court are "real people who are deeply committed to each other. Yet they are foreclosed from making that commitment simply because of who they are," she told reporters last week.

Arguments made by Bonauto, other lawyers for same-sex couples and more than six-dozen supporting briefs have strong echoes of the 1967 Loving v. Virginia case, in which the Supreme Court struck down state bans on interracial marriage. In that case, the justices were unanimous that those bans violated the constitutional rights of interracial couples.

No one expects unanimity this time. The justices have allowed orders in favor of same-sex couples to take effect even as the issue has made its way through the federal court system, but that was action through inaction.

Only 11 states have granted marriage rights to same-sex couples through the ballot or the legislature. Court rulings are responsible for all the others.

A decision is expected in late June.

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