Obergefell v. Hodges - Oral Argument - April 28, 2015 (Part 1)

Obergefell v. Hodges

Media for Obergefell v. Hodges

Audio Transcription for Opinion Announcement - June 26, 2015 (Part 1) in Obergefell v. Hodges
Audio Transcription for Opinion Announcement - June 26, 2015 (Part 2) in Obergefell v. Hodges
Audio Transcription for Oral Argument - April 28, 2015 (Part 2) in Obergefell v. Hodges

Audio Transcription for Oral Argument - April 28, 2015 (Part 1) in Obergefell v. Hodges

John G. Roberts, Jr.:

We'll hear argument this morning in Case No. 14-556, Obergefell v. Hodges and the consolidated cases. Ms. Bonauto.

Mary L. Bonauto:

Mr. Chief Justice, and may it please the Court: The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our 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. Indeed, the abiding purpose of the Fourteenth Amendment is to preclude relegating classes of persons to second-tier status.

Ruth Bader Ginsburg:

What do you do with the Windsor case where the court stressed the Federal government's historic deference to States when it comes to matters of domestic relations?

Mary L. Bonauto:

States do have primacy over domestic relations except that their laws must respect the constitutional rights of persons, and Windsor couldn't have been clearer about that.

And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.

John G. Roberts, Jr.:

Well, you say join in the institution.

The argument on the other side is that they're seeking to redefine the institution.

Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife.

Obviously, if you succeed, that core definition will no longer be operable.

Mary L. Bonauto:

I hope not, Your Honor, because what we're really talking about here is a class of people who are, by State laws, excluded from being able to participate in this institution.

And if Your Honor's question is about does this really draw a sexual orientation line --

John G. Roberts, Jr.:


My question is you're not seeking to join the institution, you're seeking to change what the institution is.

The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.

Mary L. Bonauto:

Two points on that, Your Honor.

To the extent that if you're talking about the fundamental right to marry as a core male-female institution, I think when we look at the Fourteenth Amendment, we know that it provides enduring guarantees in that what we once viewed as the role of women, or even the role of gay people, is something that has changed in our society.

So in a sense, just as the Lawrence court called out the Bowers court for not appreciating the extent of the liberty at stake, in the same vein here, the question is whether gay people share that same liberty to be --

Anthony M. Kennedy:

The problem --

Mary L. Bonauto:

-- able to form family relationships.

Anthony M. Kennedy:

One -- one of the problems is when you think about these cases you think about words or cases, and -- and the word that keeps coming back to me in this case is -- is millennia, plus time. First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States.

But on a larger scale, it's been -- it was about -- about the same time between Brown and Loving as between Lawrence and this case.

It's about 10 years. And so there's time for the scholars and the commentators and -- and the bar and the public to -- to engage in it.

But still, 10 years is -- I don't even know how to count the decimals when we talk about millennia.

This definition has been with us for millennia.

And it -- it's very difficult for the Court to say, oh, well, we -- we know better.

Mary L. Bonauto:

Well, I don't think this is a question of the Court knowing better.

When we think about the debate, the place of gay people in our civic society is something that has been contested for more than a century.

And in this -- 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 and -- and you can -- you can say 10 years of marriage for Massachusetts, but it's also in the 1970s that the Baker case from Minnesota reached this Court, and that's over 40 years ago. And it was over 20 years ago that the Hawaii Supreme Court seemed to indicate that it would rule in favor of marriage, and the American people have been debating and discussing this.

It has been exhaustively aired, and the bottom line is that gay and lesbian families live in communities as neighbors throughout this whole country.