8 awkward moments in the gay-marriage arguments

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Many of the Supreme Court justices came to the arguments on same-sex marriage Tuesday armed with a slew of colorful, wild and sometimes wildly implausible examples and counter-examples intended to elucidate different points in the gay-marriage debate. They grilled lawyers for both sides, including gay-marriage advocate Mary Bonauto and former Assistant to the Solicitor General Douglas Hallward-Driemeier for the various plantiffs; former Michigan Solicitor General John Bursch for several states on the opposing side; and U.S. Solicitor General Donald Verrilli to represent the federal government.

Here, using unofficial court-provided transcripts, is POLITICO’s look at some of the most enlightening and entertaining exchanges during the 2 ½-hour showdown over marriage:

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1. Arguing that animosity or prejudice might not be motivation for same-sex marriage bans, Justice Samuel Alito notes that not all cultures that historically rejected same-sex marriage were hostile to gays:

ALITO: But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was — it was well accepted within certain bounds. But did they have same-sex marriage in ancient Greece?

BONAUTO: Yeah. They don’t — I don’t believe they had anything comparable to what we have, Your Honor. You know, and we’re talking about —

ALITO: Well, they had marriage, didn’t they?

BONAUTO: Yeah, they had — yes. They had some sort of marriage.

ALITO: And they had — and they had same-sex relations, did they not?

BONAUTO: Yes. And they also were able to —

ALITO: People like Plato wrote in favor of that, did he not?

BONAUTO: In favor of?

ALITO: Same-sex — wrote approvingly of same-sex relationships, did he not?

BONAUTO: I believe so, Your Honor.

ALITO: So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?

BONAUTO: I can’t speak to what was happening with the ancient philosophers.

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2. Alito asks whether, if states are forced to recognize gay marriage, they could hold the line against (for lack of a better term) two-on-two marriage:

ALITO: 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?

BONAUTO: I believe so, Your Honor.

ALITO: What would be the reason?

BONAUTO: There’d be two. One is whether the State would even say that that is such a thing as a marriage, but then beyond that, there are definitely going to be concerns about coercion and consent and disrupting family relationships when you start talking about multiple persons. But I want to also just go back to the latency question for a moment, if I may. Because —

SCALIA: Well, I didn’t understand your answer.

ALITO: Yes. I hope you will come back to mine. If you want to go back to the earlier one —

BONAUTO: No, no.

ALITO: — then you can come back to mine.

BONAUTO: Well, that’s what — I mean, that is — I mean, the State —

ALITO: Well, what if there’s no — these are four people, two men and two women, it’s not— it’s not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let’s say they’re all consenting adults, highly educated. They’re all lawyers.

(Laughter.)

ALITO: What would be the ground under — under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?

BONAUTO: 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. Setting that aside, even assuming it is within the fundamental —

ALITO: But — well, I don’t know what kind of a distinction that is because a marriage between two people of the same sex is not something that we have had before, recognizing that is a substantial break. Maybe it’s a good one. So this is no — why is that a greater break?

BONAUTO: 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. If there’s a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there’d be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don’t apply here, when we’re talking about two consenting adults who want to make that mutual commitment for as long as they shall be. So that’s my answer on that.

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3. Justice Antonin Scalia points to the potential fallout from finding a constitutional right to same-sex marriage, asking if that would mean a minister could be forced to conduct a gay wedding:

SCALIA: Miss — Bonauto, I’m — I’m concerned about the wisdom of this court imposing through the Constitution a — a requirement of action which is unpalatable to many of our citizens for religious reasons. They are not likely to change their view about what marriage consists of. And were — were the States to adopt it by law, they could make exceptions to what — what is required for same-sex marriage, who has to honor it and so forth. But once it’s — it’s made a matter of constitutional law, those exceptions — for example, is it — is it conceivable that a minister who is authorized by the State to conduct marriage can decline to marry two men if indeed this Court holds that they have a constitutional right to marry? Is it conceivable that that would be allowed?

BONAUTO: Your Honor, of course the Constitution will continue to apply, and right to this day, no clergy is forced to marry any couple that they don’t want to marry. We have those protections.

SCALIA: But — but right to this day, we have never held that there is a constitutional right for these two people to marry, and the minister is to the extent he’s conducting a civil marriage, he’s an instrument of the State. I don’t see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. Which means you — you would — you could — you could have ministers who — who conduct real marriages that — that are civilly enforceable at the National Cathedral, but not at St. Matthews downtown, because that minister refuses to marry two men, and therefore, cannot be given the State power to make a real State marriage. I don’t see any — any answer to that. I really don’t.

SOTOMAYOR: Counselor, there have been antidiscrimination laws in various States; correct?

BONAUTO: Yes, Your Honor.

SOTOMAYOR: Antidiscrimination laws regarding gay people.

BONAUTO: Correct.

SOTOMAYOR: And in any of those States, have ministers been forced to do gay marriages?

BONAUTO: Of course not, Your Honor. And —

SCALIA: They are laws. They are not constitutional requirements. That was the whole point of my question. If you let the States do it, you can make an exception. The State can say, yes, two men can marry, but — but ministers who do not believe in same-sex marriage will still be authorized to conduct marriages on behalf of the State. You can’t do that once it is a constitutional proscription.

BONAUTO: 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. And since there were several other questions, if I may.

SCALIA: He’s not being required to officiate. He’s just not given the State’s power, unless he agrees to use that power in — in accordance with the Constitution. I don’t — seems to me you have to — you have to make that exception. You can’t appoint people who will then go ahead and violate the Constitution.

BONAUTO: I think if we’re talking about a government individual, a clerk, a judge, who’s empowered to authorize marriage, that is a different matter that they are going to have to follow through, unless, again, a State decides to make some exceptions. In Connecticut, after the court permitted marriage, it did actually pass a law to do deal with implementation issues, including these kinds of liberty issues.

SCALIA: Because it was a State law. That’s my whole my point. If it’s a State law, you can make those exceptions. But if it’s a constitutional requirement, I don’t see how you can. And every State allows ministers to marry people, and their marriages are effective under State law. That will not be the case if, indeed, we hold, as a constitutional matter, that the State must marry two men.

JUSTICE ELENA KAGAN: Ms. Bonauto, maybe I’m just not understanding Justice Scalia’s question, but for example, there are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, most — many, many, many rabbis won’t do that.

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4. Alito raises yet another potential human pairing, that of unmarried siblings, asking if a state could bar them from marrying:

ALITO: [L]et’s think about two groups of two people. The first is the same-sex couple who have been together for 25 years, and they get married either as a result of a change in State law or as a result of a Court decision. The second two people are unmarried siblings. They’ve lived together for 25 years. Their financial relationship is the same as the — the same-sex couple. They share household expenses and household chores in the same way. They care for each other in the same way. Is there any reason why the law should treat the two groups differently?

BONAUTO: Well, I’m not sure that the law would — the — the law allows 100 percent of heterosexual people to enter into a marriage that’s consistent with their sexual orientation, and in these States, it forbids 100 percent of gay and lesbian people from entering into a marriage that’s consistent with their sexual orientation —

ALITO: Well, as far as —

VERRILLI: — and justifies that difference.

ALITO: As far as the — the benefits that federal law confers on married people, such as in Windsor, the effect on estate taxes, what would be the reason for treating those two groups differently?

VERRILLI: Well, I — I — I’m not entirely sure there would be, but, of course, marriage is something more fundamental than that. It is an enduring bond between two people.

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5. With the states arguing that male-female marriage is designed to support child rearing, Justice Ruth Bader Ginsburg asks if states could bar elderly couples from marrying:

GINSBURG: Suppose a couple, a 70-year-old couple comes in and they want to get married.

(Laughter.)

GINSBURG: You don’t have to ask them any questions. You know they are not going to have any children.

BURSCH: Well, a 70-year-old man, obviously, is still capable of having children and you’d like keep that within the marriage. But leaving that aside, what you’re talking about, Justice Ginsburg, is — is a tailoring issue under rational basis, which we submit applies here. Vance and Heller both say that over-inclusiveness is not something you need to worry about. But even if you applied some kind of heightened scrutiny, you know, again, many people get married thinking that they can’t have kids or won’t have kids, and they end up with children, and that the inclusion of those couples advances the State’s interest because of this greater idea.

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6. So-called plural marriage arises again, with Scalia asking if states could choose not to recognize a polygamous marriage solemnized overseas:

SCALIA: Is that right? No matter — I mean, suppose — well, let’s say someone gets married in a — in a country that permits polygamy. Does a state have to acknowledge that marriage?

HALLWARD-DRIEMEIER: Well, of course, the state could assert justifications for not doing so, and I think there would be justifications —

SCALIA: Okay. So —

HALLWARD-DREIMEIER: — for not recognizing such —

SCALIA: — what would the justification be? That it’s contrary to the state’s public policy, I assume; right?

HALLWARD-DRIEMEIER: Well, no, Your Honor. I think that the justification would be that the state doesn’t have such an institution. The — a polygamous relationship would raise all kinds of questions that the state’s marriage laws don’t address.

SCALIA: Well, it would be the same argument. We don’t have such an institution. Our marriage in this state, which we constitutionally can have because the second question assumes that the first question comes out the way the United States does not want it to come out, the state says we only have the institution of heterosexual marriage. We don’t have the institution of same-sex marriage.

HALLWARD-DRIEMEIER: No. The institution is the institution of marriage, and the experience of those states —

SCALIA: Well, you’re saying that, but the state doesn’t. The state says the only institution we have is heterosexual marriage.

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7. As the justices debated when states could ignore other states’ marriages, Alito asked if a state would be compelled to recognize the marriage of a pre-teen just because another state did:

ALITO: What if it’s not a plural relationship? What if one state says that individuals can marry at the age of puberty? So a 12-year-old female can marry. Would a state — would another state be obligated to recognize that marriage?

HALLWARD-DRIEMEIER: I — I think probably not. But the state would have, in that instance, a sufficiently important interest in protecting the true consent of the married person, and most states don’t recognize minors’ ability to consent, certainly not to something that is as important as marriage. But what we see, in fact, is that, quite in contrast to the nonrecognition laws at issue here, the states do recognize the marriages of person who, by age, would not have been able to marry within their own states.

That is the longstanding practice of all of the states, precisely because of the abomination, as it was referred to in the old treatises, of the notion that a persons could have a different marital state in some jurisdictions than others.

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8. The exchange led Justice Sonia Sotomayor to bring up another marriage restriction — limits on marrying relatives — and asked whether a state could ignore a marriage another state authorized between two cousins who are related only by other relatives’ marriage and not by blood. That discussion eventually turned to one of incest:

SOTOMAYOR: Sir, how about the co-sanguinity situation? Virtually all states would recognize cousins through marriage getting married, but there’s at least one state that doesn’t, right?

HALLWARD-DRIEMEIER: Well, I —

SOTOMAYOR: Are you saying that that state is —

HALLWARD-DRIEMEIER: I think that the — that the constitutional test is the one that the Court set forth in the Zablocki [case], which is does the State have a sufficiently important interest not to recognize it? And certainly in the case of incest, the State does have a sufficiently important interest.

SOTOMAYOR: This is not incest. They’re not biologically tied.

HALLWARD-DRIEMEIER: Well, the states that I’m aware of that have the rules against cousin marriage do so under their incest statutes, and they simply define incest in a broad way that would encompass cousins to marry. At some point, certainly the familial relationship is too extenuated that I don’t think the State would have a sufficiently important justification.