RENEE MONTAGNE, HOST:
For two and a half hours, the justices of the U.S. Supreme Court sparred, skewered and probed the legal arguments on gay marriage. But at the end of yesterday's tumultuous session that included a protester being hauled out of the courtroom, there was still no certainty about the outcome. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: As expected, it looks as though the justice holding the trump card is Anthony Kennedy, who, over the last two decades, has authored three 5-to-4 opinions recognizing and expanding gay rights. But he seemed conflicted about whether to override the traditional definition of marriage as between a man and woman.
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ANTHONY KENNEDY: This definition has been with us for millennia. And it's very difficult for the court to say oh, well, we know better.
TOTENBERG: When gay rights advocate Mary Bonauto argued that all same-sex couples want is to join the institution of marriage, Chief Justice John Roberts replied this way.
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JOHN ROBERTS: You're not seeking to join the institution. You're seeking to change what the institution is.
TOTENBERG: Roberts, along with conservative justices Scalia and Alito, repeatedly asked whether any society had permitted same-sex marriage prior to 2001. Even liberal justice Stephen Breyer had a skeptical question.
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STEPHEN BREYER: And suddenly, you want nine people outside the ballot box to require states that don't want to do it to change what you've heard, change what marriage is to include gay people. Why cannot those states at least wait and see?
TOTENBERG: Breyer turned the question the other way when Michigan lawyer John Bursch defended that state's ban on gay marriage. What, other than tradition, is the state's justification for the ban, Breyer asked. Lawyer Bursch replied that the state's interest is procreation within marriage. He stuck to that answer, even while conceding that 70-year-old heterosexuals are free to marry though they can't conceive. Bursch also disputed the notion that there's a value in the dignity of marriage. That assertion prompted Justice Kennedy to straighten, his face reddening ever so slightly.
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KENNEDY: I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in the traditional marriage. And these parties say they want to have that same ennoblement.
TOTENBERG: After hearing the arguments on the gay-marriage bans, the court moved on to a second question. If the bans are upheld, can those states also refuse to recognize marriages performed in other states where they're legal? Lawyer Douglas Hallward-Driemeier told the justices that there's a long tradition of states recognizing each other's marriages, even when, for instance, the ages of the participants is younger than would've been permitted in the recognizing state. In a mobile society where people travel and move all the time, he argued, it's untenable to have states rejecting legal marriages from elsewhere in the country. He pointed to his clients, a gay couple married in California who adopted children and then were transferred by an employer to a state that recognizes neither the marriage nor the adoption.
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DOUGLAS HALLWARD-DRIEMEIER: The cost of that transfer for that job for them was the destruction of their family relationships, all that they had relied on in building their lives together.
TOTENBERG: These non-recognition states, said Hallward-Driemeier, offer exactly nothing as a justification. Chief Justice Roberts said that if a state has a strong enough argument to ban same-sex marriage, that should carry the day for recognition, too. And conversely, if states are required to recognize out-of-state gay marriages...
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ROBERTS: One state would basically set the policy for the entire nation.
TOTENBERG: efending the non-recognition laws was Tennessee Associate Solicitor General Joseph Whalen. He found himself quickly tangled up. Justice Breyer observed that Washington, D.C. allows federal judges to marry people, but New York does not.
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BREYER: So if I marry two people in Washington, D.C. and they happen to move to New York, you're saying that New York doesn't have to recognize that marriage. I think there are a few people who are going to get nervous about this.
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TOTENBERG: Whalen tried to draw a distinction between a legal judgment and a law. But Justice Sonia Sotomayor noted that a divorce is a legal judgment, and Justice Ruth Bader Ginsburg had this observation.
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RUTH BADER GINSBURG: It is odd, isn't it, that a divorce does become the decree for the nation, but not the act of marriage.
TOTENBERG: Many more such answers prompted Chief Justice Roberts to ask when was the last time Tennessee had declined to recognize a marriage from out of state other than a gay marriage. The answer was 1970, 45 years ago. That set Justice Alito to wondering if there could be a compromise, something in between that would allow states to ban gay marriages within their borders but recognize them when they're performed out of state. We'll know the answer to these and more questions by the end of June, when the court renders its decision. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
