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

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

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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.:

No.

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.

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

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Mary L. Bonauto:

And we have seen this —

Samuel A. Alito, Jr.:

You argue in your — you argue in your brief that the primary purpose of the Michigan law limiting marriage to a man and a woman was to demean gay people; is that correct?

Mary L. Bonauto:

The Michigan — the Michigan statute and amendment certainly went out of their way to say that gay people were in some sense antithetical to the good of society.

They wrote that —

Samuel A. Alito, Jr.:

And did — did you say in your brief that the primary purpose of that was to demean gay people?

Mary L. Bonauto:

I think it has that effect, Your Honor.

I do.

Now, at the same time —

Samuel A. Alito, Jr.:

Is that true just in Michigan or is that true of — of every other State that has a similar definition of marriage?

Mary L. Bonauto:

Well, if we’re talking about the States that have constitutional amendments, many of them are similar.

There are a few States that have just statutes and didn’t have amendments, and there’s some, of course, that had none of the above. But even if there’s not a purpose to demean, I think the common commonality among all of the statutes, whether they were enacted long ago or more recently, is that they encompass moral judgments and stereotypes about gay people.

Even if you think about something 100 years ago, gay people were not worthy of the concern of the government and the — and — and moral judgments about —

Samuel A. Alito, Jr.:

Well, how do you account for the fact that, as far as I’m aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?

Mary L. Bonauto:

Your Honor, my position is that times can blind.

And if you think about the example of sex discrimination and what it — again, I assume it was protected by the Fourteenth Amendment, but it took over 100 years for this Court to recognize that a sex classification contravened the Constitution. But then, in short order, between Reed and Craig v. Boren, we went from a rational-basis approach to — to heightened scrutiny, acknowledging that this kind of discrimination is invidious.

And in the same vein here, we have a foundation of Romer, of Lawrence, of Windsor —

Ruth Bader Ginsburg:

And an institution —

Samuel A. Alito, Jr.:

I don’t really think you answered my question.

Mary L. Bonauto:

I’m sorry.

Samuel A. Alito, Jr.:

Can we infer that these societies all thought there was a rational reason for this and a practical reason for this?

Mary L. Bonauto:

I don’t know what other societies assumed, but I do believe that times can blind and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded.

And I do believe —

Ruth Bader Ginsburg:

But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago.

I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship.

Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian.

And same-sex unions wouldn’t — wouldn’t fit into what marriage was once.

Mary L. Bonauto:

That’s correct.

I mean, for centuries we had — we had and — and Europe had this coverture system where a woman’s legal identity was absorbed into that of her husband and men and women had different prescribed legal roles.

And again, because of equality and changing social circumstances, all of those gender differences in the rights and responsibilities of the married pair have been eliminated.

And that, of course, is a system in which committed, same-sex couples fit quite well.

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

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Sonia Sotomayor:

Could you —

John G. Roberts, Jr.:

Coverture was not — coverture was not a universal aspect of marriage around — around the world.

And there again, if you look at the basic definition, it is between a man and a woman.

It does not always say between a man and a woman in which the woman is subordinate in legal respects.

So I’m not sure it’s still again a fair analogy to your situation.

Mary L. Bonauto:

Well, Your — Your Honor, the thing about marriage is that it’s controlled and regulated by the States.

The States create the definition of civil marriage and certainly are accountable for those definitions and any exclusions which follow.

And, of course, we all know there were exclusions in cases like Loving and Zablocki and Turner where in each case with prisoners, the people behind on their child support payments, with a mixed-race couple who wanted to be able to join this institution, and even though some of those exclusions were quite traditional, they could not —

Antonin Scalia:

Well, it was — not all societies banned mixed-race marriages.

In fact, not even all States in this country banned.

But I don’t know of any — do you know of any society, prior to the Netherlands in 2001, that permitted same-sex marriage?

Mary L. Bonauto:

As a legal matter, Your Honor?

Antonin Scalia:

As a legal matter.

Mary L. Bonauto:

I — I am not.

I am not. At —

Antonin Scalia:

For millennia, not — not a single other society until the Netherlands in 2001, and you’re telling me they were all — I don’t know what.

Mary L. Bonauto:

No.

What I’m saying is setting — taking that tradition as it is, one still needs — the Court still needs a reason to maintain that tradition when it has the effect —

Sonia Sotomayor:

Well, may I ask a —

Antonin Scalia:

Well, the — the issue, of course, is — is — is not whether there should be same-sex marriage, but who should decide the point.

Mary L. Bonauto:

Yes, and we —

Antonin Scalia:

And you’re — you’re asking us to — to decide it for this society when no other society until 2001 ever had it.

And how many States have — have voted to have same-sex marriage or their legislature or — or by referendum? I think it’s 11, isn’t it?

Mary L. Bonauto:

Yes.

But I would also count the State courts that interpret their Constitutions.

Antonin Scalia:

Well, yes, that — the State courts who agree with you.

But once again, that’s not the people deciding it.

It’s — it’s judges deciding it.

Sonia Sotomayor:

Now, counselor, in — in terms of this millennium, what’s been the status or the view of gay people in most of those countries? Have they been subject to the kinds of discrimination that they were subject to here? Were they welcomed into the worldwide community? Was it free of discrimination?

Mary L. Bonauto:

Well, if you’re speaking of the world, not every legal system around the world has the kind of system with these explicit constitutional guarantees for all persons of liberty and equality, and that immediately sets the United States off from so many other countries.

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

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Mary L. Bonauto:

And of course there are now, I don’t know if it’s 17 or 18 countries that actually do authorize marriage for same-sex couples in Europe, in South America, New Zealand.

Samuel A. Alito, Jr.:

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?

Mary L. 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 —

Samuel A. Alito, Jr.:

Well, they had marriage, didn’t they?

Mary L. Bonauto:

Yeah, they had — yes.

They had some sort of marriage.

Samuel A. Alito, Jr.:

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

Mary L. Bonauto:

Yes.

And they also were able to —

Samuel A. Alito, Jr.:

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

Mary L. Bonauto:

In favor of?

Samuel A. Alito, Jr.:

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

Mary L. Bonauto:

I believe so, Your Honor.

Samuel A. Alito, Jr.:

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

Mary L. Bonauto:

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

What I feel like —

Anthony M. Kennedy:

But it’s — you — you said that, well, marriage is different because it’s controlled by the government.

But from a historical — from anthropological standpoint, Justice Scalia was very careful to talk about societies.

Justice Alito talked about cultures.

If you read the — about the Kalahari people or — or ancient peoples, they didn’t have a government like this.

They made it themselves and it was man and a woman.

Mary L. Bonauto:

There were certainly prior to — there were marriages prior to the United States forming and we recognize that.

But when our nation did form into this union in 1787 and then when it affirmed the Fourteenth Amendment in 1868, that’s when we made — our nation collectively made a commitment to individual liberty and equality.

Stephen G. Breyer:

Well, what — maybe you’re doing that, but I would like to hear the precise answer to the question you’ve been asked several times.

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

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Mary L. Bonauto:

Okay.

Stephen G. Breyer:

And to me, it takes the form, the opposite view has been the law everywhere for thousands of years among people who were not discriminating even against gay people, 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 is change what marriage is to include gay people. Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage? Now, that same question has been put in many, many ways in the briefs on our subject.

You’ve received it in three or four different ways.

I would like to know, so I can hear and understand it, just what your response is.

Mary L. Bonauto:

Okay.

And I apologize if I haven’t. In our system, you know, with the Fourteenth Amendment, which again is — it sets forth principles that we all are governed by and govern our lives, and you look at examples like coverture.

Okay? Even if it was not universal, it was still something that was wide — widespread in this nation for a very, very long time, and that change in marriage was deeply unsettling to people. Likewise, even if race was not used as a basis for discriminating in every single State as a matter of law by criminal law and constitutional law, it was incredibly pervasive.

And again, changing that, as Virginia resisted in the Loving case, resisted and said please, wait and see, 80 percent of the American public was with Virginia on that.

But again, it was the question of the individual liberty of the person to do something that was considered a profound change in its time.

Samuel A. Alito, Jr.:

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?

Mary L. Bonauto:

I believe so, Your Honor.

Samuel A. Alito, Jr.:

What would be the reason?

Mary L. 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 —

Antonin Scalia:

Well, I didn’t understand your answer.

Samuel A. Alito, Jr.:

Yes.

I hope you will come back to mine.

If you want to go back to the earlier one —

Mary L. Bonauto:

No, no.

Samuel A. Alito, Jr.:

— then you can come back to mine.

Mary L. Bonauto:

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

Samuel A. Alito, Jr.:

Well, what if there’s no — these are 4 people, 2 men and 2 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.)

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?

Mary L. 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 —

Samuel A. Alito, Jr.:

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.

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

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Samuel A. Alito, Jr.:

Maybe it’s a good one.

So this is no — why is that a greater break?

Mary L. 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. And just if I may turn for a moment to the wait and see for a moment.

Wait and see by itself has never been considered a legitimate justification, a freestanding justification under the Fourteenth Amendment.

And what we’re talking about here with waiting and seeing is we’re talking about — we’re talking about the Petitioners being denied marriage. And we’re talking about a second class status being tried as a matter of the Constitution —

Anthony M. Kennedy:

Well, part of wait and see, I suppose, is to ascertain whether the social science, the new studies are accurate.

But that — it seems to me, then, that we should not consult at all the social science on this, because it’s too new.

You think — you say we don’t need to wait for changes.

So it seems to me that if we’re not going to wait, then it’s only fair for us to say, well, we’re not going to consult social science.

Mary L. Bonauto:

Well, two points on that, if I may.

In terms of waiting, I do think the effect of waiting is not neutral, it does consign same-sex couples to this outlier status, and there will be profound consequences that follow from that. But then setting that aside vis-à-vis the social science, there have been trials, of course in the Michigan case, in Arkansas, in Florida about adoption bans.

These issues have been aired repeatedly, and there is, as you all have heard, a social science consensus that there’s nothing about the sex or sexual orientation of the parent, that is going to affect child outcomes. And this isn’t just research about gay people.

It’s research about, you know, again, what is the effect of gender, it goes for 50 years.

John G. Roberts, Jr.:

You’re — you’re quite right that the consequences of waiting are not neutral.

On the other hand, one of the things that’s truly extraordinary about this whole issue is how quickly has been the acceptance of your position across broad elements of society.

I don’t know what the latest opinion polls show. The situation in Maine, I think, is — is characteristic.

In 2009, I guess it was by referendum, whatever, they banned gay marriage.

In 2012, they enacted it as law.

I mean, that sort of quick change has been a characteristic of this debate, but if you prevail here, there will be no more debate.

I mean, closing a debate can close minds, and — and it will have a consequence on how this new institution is — is accepted.

People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by — by the courts.

Mary L. Bonauto:

Well, there’s a few points there, and I hope I get them all.

With respect to Maine, one thing that separates Maine from the States that we’re talking about here is that there wasn’t a constitutional amendment in place that really largely shuts down the process.

It is extraordinarily difficult to amend the Constitution, and an opinion poll is not a measure in any way of what a legislature is going to do in terms of approving an amendment to go out to the voters.

So there — there are some serious structural problems that did not apply in a place like Maine. And in terms of acceptance, when I think about acceptance, I think about the nation as a whole, and the — and there are places where, again, there are no protections, virtually no protections for gay and lesbian people in employment, in parenting.

You know, the Michigan Petitioners, for example, are not allowed to be parents of their own children, the children that the State of Michigan has placed with them and approved of their adoptions.

Antonin Scalia:

Miss — 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.

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

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Antonin Scalia:

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?

Mary L. 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.

Antonin 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.

Sonia Sotomayor:

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

Mary L. Bonauto:

Yes, Your Honor.

Sonia Sotomayor:

Antidiscrimination laws regarding gay people.

Mary L. Bonauto:

Correct.

Sonia Sotomayor:

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

Mary L. Bonauto:

Of course not, Your Honor. And —

Antonin 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 — 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.

Mary L. 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?

Antonin 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.

Mary L. Bonauto:

I think if we’re talking about a government individual, a clerk, a judge, who’s empowered to authorize marriage, that 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 deal with implementation issues, including these kinds of liberty issues.

Antonin Scalia:

Because it was a State law. That’s my whole my point.

If it’s a State law, you can make those exceptions.

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

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Antonin Scalia:

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.

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.

Mary L. Bonauto:

That’s precisely —

Stephen G. Breyer:

It’s called Congress shall make no law respecting the freedom of religion —

Mary L. Bonauto:

So, yes —

Stephen G. Breyer:

— but that —

Mary L. Bonauto:

— can I —

Stephen G. Breyer:

— it leaves this question —

Mary L. Bonauto:

Yes.

Stephen G. Breyer:

— open?

Mary L. Bonauto:

Yes.

And I will just say very briefly —

Antonin Scalia:

Well, you — you —

Mary L. Bonauto:

And I need to —

Antonin Scalia:

— you agree with that —

Mary L. Bonauto:

— reserve my time, if I may.

Antonin Scalia:

— then? You agree that — that ministers will not have to conduct same-sex marriages?

Mary L. Bonauto:

If they do not want to, that is correct.

I believe that is affirmed under the First Amendment. And I will say before I sit down, if I may reserve my time, Your Honor, that in terms of the question of who decides, it’s not about the Court versus the States.

It’s about the individual making the choice to marry and whom to marry, or the government.

John G. Roberts, Jr.:

Thank you, counsel. (Interruption.)

General, would you like to take a moment?

Donald B. Verrilli, Jr.:

I will.

Thank you, Mr. Chief Justice. Actually, Mr. Chief Justice, if the Court is ready.

John G. Roberts, Jr.:

Well, we’re ready. Okay.

Antonin Scalia:

It was rather refreshing, actually. (Laughter.)

Donald B. Verrilli, Jr.:

Mr. Chief Justice, and may it please the Court: The opportunity to marry is integral to human dignity.

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

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Donald B. Verrilli, Jr.:

Excluding gay and lesbian couples from marriage demeans the dignity of these couples.

It demeans their children, and it denies the — both the couples and their children the stabilizing structure that marriage affords. Now, the Respondents’ principal argument, and what we’ve been discussing this morning so far, is whether this issue of — whether this discrimination should persist, is something that should be left to the political process or whether it should be something decided by the Court.

And I’d like to make three points about that, if I could. First, the — I think it’s important to understand that if this Court concludes that this issue should be left to the political process, what the Court will be saying is that the demeaning, second-class status that gay and lesbian couples now inhabit in — in States that do not provide for marriage is consistent with the equal protection of the laws.

That is not a wait-and-see.

That is a validation. And second, to the extent that the thought is that this can be left to the political process because this issue will take care of itself over time, because attitudes are changing, what I respectfully submit to the Court is that although no one can see the future perfectly, of course, that it seems much more likely to me that the outcome that we’re going to end up with is something that will approximate the nation as a house divided that we had with de jure racial segregation.

You may have many States, perhaps most States, in which gay couples can live with equal dignity and status, but you will have a minority of States in which gay couples will be relegated to demeaning, second-class status, and I don’t know why we would want to repeat that history. And third —

John G. Roberts, Jr.:

But, General, I — I’m sorry.

Go ahead.

Donald B. Verrilli, Jr.:

And third, I want to expand on what Ms. Bonauto said, that — that — and I think you, Mr. Chief Justice, you did recognize this, that the decision to leave this to the political process is going to impose enormous costs that this Court thought were costs of constitutional stature in Windsor. Thousands and thousands of people are going to live out their lives and go to their deaths without their States ever recognizing the equal dignity of their relationships.

Anthony M. Kennedy:

Well, you could have said the same thing 10 years ago or so when we had Lawrence. Haven’t we learned a tremendous amount since — well, since Lawrence, just in the last 10 years?

Donald B. Verrilli, Jr.:

Yes.

And, Your Honor, I actually think that’s quite a critical point that goes to the questions that Your Honor was asking earlier.

I do think Lawrence was an important catalyst that has brought us to where we are today.

And I think what Lawrence did was provide an assurance that gay and lesbian couples could live openly in society as free people and start families and raise families and participate fully in their communities without fear. And there are — two things flow from that, I think.

One is that has brought us to the point where we understand now, in a way even that we did not fully understand in Lawrence, that gay and lesbian people and gay and lesbian couples are full and equal members of the community.

And what we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people, we now understand do not justify that kind of oppression.

John G. Roberts, Jr.:

The difference, of course, is Lawrence, the whole argument is the State cannot intrude on that personal relationship.

This, it seems to me, is — is different in that what the argument is is the State must sanction.

It must approve that relationship.

They’re two different questions.

Donald B. Verrilli, Jr.:

It is different, I agree. And I — and it leads to the second thing I think that the — that the Lawrence catalyzed for our society, was it put gay and lesbian couples, gay and lesbian people, in a position for the first time in our history to be able to lay claim to the abiding promise of the Fourteenth Amendment in a way that was just impossible when they were marginalized and ostracized. And you’re right, Mr. Chief Justice, this is about equal participation, participation on equal terms in a State-conferred — a State-conferred status, a State institution.

That is different than Lawrence, but I do think that what Lawrence has allowed us to see is that the justifications for excluding gay and lesbian couples from equal participation in this institution just hold up. And I do think — and the Court has raised this question about whether what we are talking about here is a — is a fundamental change in the nature of marriage.

And I think the answer to that question is that this case can be decided by thinking about marriage in exactly the way the States — the Respondent States and other States define marriage now. And I think it’s important to think about it this way.

Heterosexual couples can enter marriage, and they can have families through biological procreation. They can have families through assisted reproduction. They can have families through adoption, or they can not have families at all.

Samuel A. Alito, Jr.:

What do you think —

Donald B. Verrilli, Jr.:

And I —

Samuel A. Alito, Jr.:

— are the essential elements of marriage as it exists today?

Donald B. Verrilli, Jr.:

Well, I think the essential elements of marriage are the ones that are — that — the — the obligations of mutual support and responsibility and the benefits surrounding marriage that State law provides to ensure that there is an enduring bond, that enduring bond that continues over time and lasts, hopefully, till death do us part, through the end of life.

And that — and with — and — and, certainly, childrearing is bound up in that. But what I would suggest, Justice Alito, is the that way childbearing — bearing is bound up in that is quite different than what my friends on the other side will say.

Samuel A. Alito, Jr.:

Well, let’s — let’s think about two groups of two people.

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Samuel A. Alito, Jr.:

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?

Donald B. Verrilli, Jr.:

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 —

Samuel A. Alito, Jr.:

Well, as far as —

Donald B. Verrilli, Jr.:

— and justifies that difference.

Samuel A. Alito, Jr.:

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?

Donald B. Verrilli, Jr.:

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. And to get back to the point about childrearing, I do think this is quite important.

I mean, I — I understand, and in part of their wait-and-see and caution argument, that Respondents are — that what Respondents are saying here is that they — that they want to exercise an attitude of caution because of concern about the welfare of children raised in same-sex married households. But there’s a quite significant problem with that rationale, and it’s this: Right now, today, hundreds of thousands of children are being raised in same-sex households.

That number is only going to grow. All of the evidence so far shows you that there isn’t a problem, and what the — and the States’ argument really is quite ironic in this respect that it’s going to deny marriage, the State —

Antonin Scalia:

That — that’s quite a statement.

All of the evidence shows there is no problem.

Donald B. Verrilli, Jr.:

Well, I —

Antonin Scalia:

All of the evidence shows there’s not a problem.

Donald B. Verrilli, Jr.:

I — I think all of the leading organizations that have filed briefs have said to you that there is a consensus in that, and —

Antonin Scalia:

Well, I think some of the — some of the briefs contradicted that.

Donald B. Verrilli, Jr.:

But — but even beyond that, I think the more fundamental point, and the point I’m trying to drive at here, is that you have hundreds of thousands of children raised in same-sex households now.

And what Respondents’ position and Respondents’ caution argument leads you to is the conclusion that those hundreds of thousands of children don’t get the stabilizing structure and the many benefits of marriage.

John G. Roberts, Jr.:

Counsel, I’d like to follow up in a line of questioning that Justice Scalia started. We have a concession from your friend that clergy will not be required to perform same-sex marriage, but there are going to be harder questions. Would a religious school that has married housing be required to afford such housing to same-sex couples?

Donald B. Verrilli, Jr.:

I guess what I’d — I’d like to make three points about that, if I could, Mr. Chief Justice.

John G. Roberts, Jr.:

Well, the first part —

Donald B. Verrilli, Jr.:

And I will — and I’ll go right at the question you asked. The first one is, of course, this Court’s ruling addresses what the States must do under the Fourteenth Amendment. And the — and the second point is that when you get to a question like the one Your Honor asked, that is going to depend on how States work out the balance between their civil rights laws, whether they decide that there’s going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law. And they could well — you know, different states could strike different balances.

John G. Roberts, Jr.:

What about Federal — it’s a Federal question if we make it a matter of constitutional law.

Donald B. Verrilli, Jr.:

But the question of what — how States use their enforcement power is up to the States.

John G. Roberts, Jr.:

Well, you have enforcement power, too.

Donald B. Verrilli, Jr.:

Right.

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Donald B. Verrilli, Jr.:

And — and — well, that’s certainly true, but there is no Federal law now generally banning discrimination based on sexual orientation, and that’s where those issues are going to have to be worked out. And I guess the third point I would make, Your Honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in States where there is no same-sex marriage, where there are — and, in fact, they have arisen many times.

There — there are these commitment ceremonies. For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage.

That arose out of a commitment ceremony, and the — and these, you know, commitment ceremonies are going to need florists and caterers.

Samuel A. Alito, Jr.:

Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating.

So would the same apply to a university or a college if it opposed same-sex marriage?

Donald B. Verrilli, Jr.:

You know, I — I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that.

I don’t deny that, Justice Alito.

It is — it is going to be an issue.

Anthony M. Kennedy:

Let me ask one question. I see your time is going out.

I’m interested in your comments on Glucksberg, which says what we should have to define a fundamental right in its narrowest terms. A lot of the questions that we’re — we’re asking your colleague in the earlier part of the argument were — had — had that in mind, I think. What — what do we do with the language of Glucksberg that says we have to define it in a narrow way?

Donald B. Verrilli, Jr.:

Justice Kennedy, forgive me for answering the question this way. We do recognize that there’s a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven’t made the fundamental rights argument under Glucksberg.

And therefore, I’m not sure it would be appropriate for me not having briefed it to comment on that.

Anthony M. Kennedy:

Well, can you tell me why you didn’t make the fundamental argument?

Donald B. Verrilli, Jr.:

Well, because we think — well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice’s question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State-conferred status and institution.

And that’s why we think of it in equal protection terms. And if I could just in the — in the little time that I have left, I’d like to suggest this, that what the Respondents are ultimately saying to the Court is that with respect to marriage, they are not ready yet.

And yes, gay and lesbian couples can live openly in society, and yes, they can raise children.

Yes, they can participate fully as members of their community. Marriage, though, not yet.

Leave that to be worked out later.

But the Petitioners — the Petitioners, these gay and lesbian couples are —

Antonin Scalia:

Or not.

Or not.

I mean, that’s not what they are saying.

They are saying leave it to the people.

It will be worked out later or not.

Donald B. Verrilli, Jr.:

But what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now.

And it is emphatically the duty of this Court, in this case, as it was in Lawrence, to decide what the Fourteenth Amendment requires. And what I would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable — untenable to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals.

Gay and lesbian people are equal.

They deserve the equal protection of the laws, and they deserve it now. Thank you.

John G. Roberts, Jr.:

Thank you, General. Mr. Bursch.

John J. Bursch:

Thank you, Mr. Chief Justice, and may it please the Court: Respondents are not saying we’re not ready yet.

Audio Transcription for Opinion Announcement – June 26, 2015 (Part 2) in Obergefell v. Hodges
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John J. Bursch:

Respondents are really echoing the questions that — that Justice Breyer was asking. This case isn’t about how to define marriage.

It’s about who gets to decide that question. Is it the people acting through the democratic process, or is it the Federal courts? And we’re asking you to affirm every individual’s fundamental liberty interest in deciding the meaning of marriage.

And I think this whole case really turns on the questions that Justice Alito asked.

Sonia Sotomayor:

I’m sorry.

Nobody is taking that away from anybody.

Every single individual in this society chooses, if they can, their sexual orientation or who to marry or not marry.

I suspect even with us giving gays rights to marry that there’s some gay people who will choose not to.

Just as there’s some heterosexual couples who choose not to marry.

So we’re not taking anybody’s liberty away.

John J. Bursch:

But we’re talking about the fundamental liberty interest in deciding the question of what marriage means, and to get that —

Stephen G. Breyer:

I don’t know that that’s — I mean, leaving that to the side, I thought that I heard the answer to the question being given in respect to tradition of 2000 years, and to the democratic ballot box and so forth was quite simple. What I heard was, one, marriage is fundamental.

I mean, certainly that’s true for 10,000 years.

And marriage, as the States administer it, is open to vast numbers of people who both have children, adopt children, don’t have children, all over the place. But there is one group of people whom they won’t open marriage to.

So they have no possibility to participate in that fundamental liberty.

That is people of the same sex who wish to marry.

And so we ask, why? And the answer we get is, well, people have always done it.

You know, you could have answered that one the same way we talk about racial segregation. Or two, because certain religious groups do think it’s a sin, and I believe they sincerely think it. There’s no question about their sincerity, but is a purely religious reason on the part of some people sufficient? And then when I look for reasons three, four and five, I don’t find them.

What are they? So — so therefore, I’m asking — there I put a long question, but it gives you an opening to say what all of those reasons are.

John J. Bursch:

Justice Breyer, those answers one and two are not our answers.

Stephen G. Breyer:

Good.

John J. Bursch:

Our answer number one is that the marriage institution did not develop to deny dignity or to give second class status to anyone.

It developed to serve purposes that, by their nature, arise from biology. Now, imagine a world today where we had no marriage at all.

Men and women would still be getting together and creating children, but they wouldn’t be attached to each other in any social institution. Now, the — the marriage view on the other side here is that marriage is all about love and commitment.

And as a society, we can agree that that’s important, but the State doesn’t have any interest in that.

If we’re trying to solve that social problem I just described, where there’s no marriage, we wouldn’t solve it by saying, well, let’s have people identify who they are emotionally committed to and recognize those relationships.

Elena Kagan:

Mr. Bursch, I — I understand that argument.

It’s the principal argument that you make in — in your briefs, that same-sex marriage doesn’t advance this State interest in regulating procreation. Let’s just assume for the moment that that’s so.

Obviously, same-sex partners cannot procreate themselves.

But is there — in addition to that, are you saying that recognizing same-sex marriage will impinge upon that State interest, will harm that State interest in regulating procreation through marriage?

John J. Bursch:

We are saying that, Your Honor. Now, obviously, under a rational basis, that’s not a question that you need to decide, but — but even leaving that aside —

Audio Transcription for Opinion Announcement – June 26, 2015 (Part 2) in Obergefell v. Hodges
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Ruth Bader Ginsburg:

How could that — how could that be, because all of the incentives, all of the benefits that marriage affords would still be available. So you’re not taking away anything from heterosexual couples.

They would have the very same incentive to marry, all the benefits that come with marriage that they do now.

John J. Bursch:

Justice Kagan and Justice Ginsburg, it has to do with the societal understanding of what marriage means.

This is a much bigger idea than any particular couple and what a marriage might mean to them or to their children.

And when you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences.

So, you know, for example, a reasonable —

Sonia Sotomayor:

You don’t do that.

John J. Bursch:

If I could —

Sonia Sotomayor:

That’s the problem.

John J. Bursch:

If — if I could —

Sonia Sotomayor:

Marriage doesn’t do that on any level.

How many married couples do fathers with the benefits or the requirements of marriage walk away from their children?

John J. Bursch:

Justice —

Sonia Sotomayor:

So it’s not that the institution alone does it and that without it that father is going to stay in the marriage.

He made a choice.

John J. Bursch:

Justice —

Sonia Sotomayor:

I would say that it could — I could — it should be gender-neutral.

Some mothers do the same thing. But my point is that I’m not sure how I get to the point that Justice Breyer is making: How does withholding marriage from one group, same — same-sex couples, increase the value to the other group?

John J. Bursch:

Justice Sotomayor, there’s all kinds of societal pressures that are already delinking that reason that the State, again, is for marriage, keeping kids and their biological moms and dads together whenever possible.

Antonin Scalia:

Excuse me.

Do — do you have to answer that question?

John J. Bursch:

Under rational basis, we don’t.

Antonin Scalia:

Is — is it your burden to show that it — it — it will harm marriage between a man and woman if — if you allow two men or two women to marry? Is that your burden? I thought your burden was simply to show that — that the State’s reason for this institution is a reason that has nothing to do, that is inapplicable to same-sex couples.

John J. Bursch:

Justice Scalia, you’re exactly right, and that’s why we — we prevail.

Elena Kagan:

Yes, but I don’t think that —

John J. Bursch:

But — but I want to answer your question.

Elena Kagan:

— that’s right, Mr. Bursch. I don’t think that that’s right.

I think before something as fundamental to a society and to individuals as marriage, before an exclusion of this kind can be made in that institution, the State needs some reason for that exclusion.

John J. Bursch:

And that’s why I’d like to answer.

Elena Kagan:

And I’ve given you an — a real opportunity to tell me what that reason is.

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John J. Bursch:

Yes, I — I —

Elena Kagan:

What is the reason for the exclusion rather than the reason for the noninclusion?

John J. Bursch:

Well, first, it wasn’t a reason for an exclusion.

It was a definition to solve a particular problem.

But the reason why there’s — there’s harm if you change the definition because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage. Now, I want to give you a — a hypothetical. Imagine two couples —

Elena Kagan:

But do you think — do you think that that’s what it would do, Mr. Bursch, that if one allowed same-sex marriage, one would be announcing to the world that marriage and children have nothing to do with each other?

John J. Bursch:

Not — not in the abstract, Your Honor.

That kind of example —

Elena Kagan:

Well, not in the abstract, not in the concrete.

John J. Bursch:

Well, let me give you an example.

We’re — we’re talking about something that’s going to change the meaning of the institution over generations.

And — and, you know, you have things like no-fault divorce where we tweaked what marriage means, and it had consequences over the long term that some people didn’t expect. I want you to think about two couples that are identically situated.

They’ve been married for five years, and they each have a 3-year-old child.

One grows up believing that marriage is about keeping that couple bound to that child forever.

The other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together. A reasonable voter, which is what we’re talking about here, could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems.

Ideas matter, Your Honors, and — and, you know, the out-of-wedlock birthrate —

Anthony M. Kennedy:

But that — that assumes that same-sex couples could not have the more noble purpose, and that’s the whole point.

Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage.

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.

John J. Bursch:

And Justice —

Anthony M. Kennedy:

And — and — but you argued in your brief, and Justice Kagan was quite correct to — to say that you’re saying that this harms conventional marriage.

That was the argument you made in your brief as I understood it.

John J. Bursch:

Justice Kennedy, to be perfectly clear, the State of Michigan values the dignity and worth of every human being, no matter their orientation or how they choose to live their life. That’s not what this case is about. Our point is that when you change something as fundamental as the marriage definition, as Chief Justice Roberts was saying, the dictionary definition which has existed for millennia, and you apply that over generations, that those changes matter.

And it’s not unreasonable —

Stephen G. Breyer:

I’m sure that’s true.

But I mean, the — the fact is that — that X percent, a very high percent of opposite-sex people don’t have children and everybody knows they can’t, and a very — and a high — certain percentage, I’m sure probably pretty high of those who get married, of same-sex people who get married do have children. So — so where is this going? I mean, what are these two couples to do with it? I mean —

John J. Bursch:

Well, we’re — we’re —

Anthony M. Kennedy:

— how do we get from what I just said —

John J. Bursch:

Right.

We’re — we’re concerned —

Audio Transcription for Opinion Announcement – June 26, 2015 (Part 2) in Obergefell v. Hodges
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Anthony M. Kennedy:

— to some kind of rational or — or important distinction?

John J. Bursch:

What — we’re concerned about all the children, children of opposite-sex couples and children of same-sex couples.

There are 73 million children in this country.

If this Court ensconces in the Constitution a new definition of marriage and it reduces the rate that opposite-sex couples stay together, bound to their children, because of that different understanding, even a 1 percent change —

Stephen G. Breyer:

Well, what — what evidence —

John J. Bursch:

— is many, many children.

Stephen G. Breyer:

— is there of that?

John J. Bursch:

A reasonable voter, again, looking at the two couples that I just described, one believing that marriage is all about staying with their kids, the other one believing it’s all about emotion and commitment, could have different results.

And it’s reasonable to believe that.

Sonia Sotomayor:

But the problem is that even under a rational-basis standard, do we accept a feeling? I mean, why is — why as — and I think Justice Kagan put the argument quite clearly, with something as fundamental as marriage, why would that feeling, which doesn’t make any logical sense, control our decision-making?

John J. Bursch:

It doesn’t make any logical sense to you that if people think love is — or a marriage is more about love and commitment than about staying bound to your child forever, that there might be different consequences when people are —

Elena Kagan:

But I do think, Mr. Bursch —

Sonia Sotomayor:

My problem is that I think people who get into marriage think that, heterosexual couples.

John J. Bursch:

I — I think everyone thinks that.

Sonia Sotomayor:

Everybody has their own vision of what marriage is, but what the State confers is certain obligations —

John J. Bursch:

Yes.

Sonia Sotomayor:

— and they are willing to accept those.

Whether or not that couple stays together, they are bound to that child.

They have to support the child, they have to care for him or her. Some people choose voluntarily, meaning they just choose because they don’t want to, but that happens in — whether it’s same-sex or heterosexual couples.

John J. Bursch:

Right.

But — but what you’re describing are different ways that people think about marriage, and certainly it’s a harm to a child of an opposite-sex couple if they get divorced as opposed to stay together forever.

I mean, I think we can all agree that, in general, that we want kids to stay bound to their biological mother and father whenever possible. That’s the whole definition. And what I hear are lots of other —

Sonia Sotomayor:

No, I — I think they should be bound to their parent, because there’s a lot of adopted children and they are not thinking of biological moms and dads.

John J. Bursch:

Oh, sure.

That’s a completely different situation.

Sonia Sotomayor:

You know, well —

John J. Bursch:

Right.

I mean, that — that’s a situation where the child doesn’t have their biological mom and dad anymore for whatever reason, and so that’s a different State interest.

Elena Kagan:

Mr Bursch, suppose — suppose this: Suppose that there’s a State with a very procreation-centered view of marriage of the kind that you’re talking about.

And it — you know, so emotional commitment and support, all of these, the State thinks are not the purpose of marriage and they want their marriage licenses to be addressed only to the things which serve this procreation purpose.

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

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Elena Kagan:

And so they say, Well, we’re not giving marriage licenses to any — to anybody who doesn’t want children.

So when people come in and ask for a marriage license, they just ask a simple question: Do you want children? And if the answer is no, the State says, no marriage license for you.

Would that be constitutional?

John J. Bursch:

Well, that would cut against the State’s interest as you’ve just described it because even people —

Elena Kagan:

No, the State has — the State has this — it’s not a perfect correlation, but the State says that the best — the best way to promote this procreation-centered view of marriage is just to limit marriage to people who want children.

So that’s what it does.

Would that be constitutional?

John J. Bursch:

But, Justice Kagan, even people who come into a marriage thinking they don’t want to have children often end up with children.

And that State’s interest isn’t binding those–

Elena Kagan:

No, but this State —

Anthony M. Kennedy:

But what is your —

Elena Kagan:

What you said —

Anthony M. Kennedy:

What is your answer to the question?

John G. Roberts, Jr.:

Justice Kennedy.

Anthony M. Kennedy:

What is your answer to the question?

John J. Bursch:

Would it be constitutional?

Anthony M. Kennedy:

Yes.

John J. Bursch:

I think it would be an unconstitutional invasion of privacy to ask the question.

Elena Kagan:

To ask if you want children is an unconstitutional invasion of privacy?

John J. Bursch:

I — I think that would be the case, yes, just like it would be unconstitutional —

Ruth Bader Ginsburg:

Suppose a couple, a 70-year-old couple comes in and they want to get married. (Laughter.)

You don’t have to ask them any questions.

You know they are not going to have any children.

John J. 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 overinclusiveness 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.

Elena Kagan:

No, but you’re — but you’re the one who said that rational basis, pure rational basis, applies.

And this is a State —

John J. Bursch:

Yes.

Elena Kagan:

— that’s decided that it so wants this procreation-centered view of marriage, that it’s going to exclude people who don’t want children. It’s going to exclude people who can’t have children. And the question is, would that be constitutional? And it seems to me it flows directly from your argument that it would be constitutional. But the problem is that we hear about those kinds of restrictions, and every single one of us said that can’t be constitutional.

And I’m suggesting that the same might be true here.

John J. Bursch:

That — that it can’t be constitutional to keep the marriage definition that, as several Justices have mentioned, has been rationally applied for millennia in every culture.

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

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Elena Kagan:

To keep the marriage definition as — as you have described it as so procreation-centered, that a State can exclude everybody that does not serve that purpose for that reason alone. And that’s the reason you’ve given.

John J. Bursch:

That — that’s the primary interest.

But if you’re concerned about the — the overinclusiveness, the underinclusiveness, you know, the — the Plaintiffs’ definition of marriage, other definition of marriages suffer from that same flaw. You know, so, for example, the — the Plaintiffs’ definition also excludes relationships, families that have already been discussed this morning that might benefit from having State-recognized marriage.

It also includes people who have no real emotional love or commitment towards each other.

They get married for other reasons.

So if those are the reasons why the State’s definitions —

Samuel A. Alito, Jr.:

If the reason —

John J. Bursch:

— are invalid —

Samuel A. Alito, Jr.:

— the reason for marriage is to provide a lasting bond between people who love each other and make a commitment to take care of each other, I’m not — do you see a way in which that logic can be limited to two people who want to have sexual relations —

John J. Bursch:

It — it — can’t be.

Samuel A. Alito, Jr.:

— why that would not extend to larger groups, the one I mentioned earlier, two men and two women, or why it would not extend to unmarried siblings who have the same sort of relationship?

John J. Bursch:

It would be overinclusive and underinclusive.

And the underlying point there is that the State doesn’t have an interest in love and emotion at all.

You know, if Justice Kagan and I have a close friendship, the government doesn’t regulate when that friendship begins or ends.

But the government’s sole interest in these cases isn’t about love.

It’s about binding children to their biological —

Stephen G. Breyer:

That’s fine.

John J. Bursch:

— moms and dads —

Stephen G. Breyer:

I’d like to go — to — to direct that.

I — because I think we can accept that kind of definition, and simply point out that many gay people want to have children, and they do.

John J. Bursch:

Sure.

Stephen G. Breyer:

So it’s — I’m not certain how that works here, but I’ll think about it. The other thing I — that you will have a view on, and will be helpful to me, is there is an argument being made, if not by the government — and I’d like your response to it — that after all, marriage is about as basic a right as there is; that the Constitution and Amendment Fourteen does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law; and that to take a group of people where so little distinguishes them from the people you give the liberty to, at least in terms of a — of a good reason for not to, and you don’t let them participate in this basic institution, that that violates the Fourteenth Amendment. Now, the reason that I’m interested in that is we don’t get into this more scholastic effort to distinguish between rational basis and middle tier and some higher tier and so forth.

And it’s not going to get into all these questions of balancing free religion rights versus gay rights and so forth.

We’d avoid that in this case.

And perhaps that’s wise, if not legally required, which it may be.

And so I’d like your response to that aspect of the other side’s argument.

John J. Bursch:

I think with respect to the right of privacy which you identify, this Court already answered that — that question in its majority opinion in Windsor when you said that the limitation of marriage —

Stephen G. Breyer:

It wasn’t a right of privacy.

What I said was that the right to be married is as basic a liberty, as basic a fundamental liberty, not the right of privacy, the right to be married, which has existed for all of human civilization, that that is the right which is fundamental.

And, therefore, when a State offers that to almost everyone, but excludes a group — I’m just repeating myself, but that — I — I want that question answered to the best of your ability, please.

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

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John J. Bursch:

I’m using right to privacy interchangeably with the fundamental right that you’re speaking about.

And in Windsor, this Court said that the limitation of marriage to opposite-sex couples has always been thought to be fundamental.

And so under the — the Glucksberg test, that’s dispositive.

Now, you could change that —

Stephen G. Breyer:

All right.

Suppose I don’t accept, for argument’s sake, your notion that the right of privacy and the right to be married are the same thing.

Okay.

Now, we’ll deal with my hypothetical, please.

And my hypothetical is they are different things.

John J. Bursch:

Sure.

Stephen G. Breyer:

And on that assumption, I would like to know what you think of the argument.

John J. Bursch:

I think Windsor compared with Glucksberg is dispositive on that because the limitation on the fundamental right —

Sonia Sotomayor:

I — I — you know, the problem is that I don’t actually accept your starting premise.

The right to marriage is, I think, embedded in our constitutional law.

It is a fundamental right. We’ve said it in a number of cases. The issue is you can’t narrow it down to say, but is gay marriage fundamental? Has black-and-white marriage been treated fundamentally? The issue was starting from the proposition of, is the right to marry fundamental? And then is it compelling for a State to exclude a group of people?

John J. Bursch:

And, Justice —

Sonia Sotomayor:

And that, for me, is as — as simple as the question gets.

John J. Bursch:

Justice Sotomayor, I’m not arguing with you or Justice Breyer about how broadly or narrowly we should be defining the fundamental marriage right.

I’m simply pointing out that under this Court’s long-established precedent in the fundamental rights area, which is designed to create a balance where Federal courts aren’t always interfering with the State democratic process, that in Windsor, you already answered that question.

It doesn’t matter how broadly or narrowly we define it.

What’s been fundamentally understood as a limitation is the opposite sex nature of marriage.

John G. Roberts, Jr.:

Counsel, I’m — I’m not sure it’s necessary to get into sexual orientation to resolve the case.

I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t.

And the difference is based upon their different sex.

Why isn’t that a straightforward question of sexual discrimination?

John J. Bursch:

Two reasons.

All of this Court’s landmark precedents in this area in sexual discrimination law have always involved treating classes of men and women differently.

And that’s not what we have here. But — but even more fundamentally than that, this Court has recognized in Nguyen v. INS that it’s appropriate to draw lines based on sex if it’s related to biology.

And if you’ll indulge me just for a minute, the Nguyen case really is important here. You’ll recall that’s the case where we had a law that determined citizenship of children born to divorced or — or unmarried individuals overseas.

And the law said if it was the child of a citizen mother, then they automatically had citizenship, but if it was the father, then the father had to, one, prove paternity and, two, make child support payments up to age 18.

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

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John J. Bursch:

And that’s an obvious sex discrimination.

And the Court said —

Ruth Bader Ginsburg:

Well, the Court — the — the Court — the Court’s rationale for that was we know who the mother is.

We’re fearful that the father is claiming to be the father for some benefits that he’s going to get from that status, but we can’t be sure he is the father.

John J. Bursch:

Right.

Justice Ginsburg, that was the justification for the prove the parenthood.

But I would like to — to quote from the opinion about the second interest, the — the child support. The Court said that the government had an important interest in ensuring an opportunity to have a meaningful parent-child relationship between that biological father and the child.

And the law substantially advanced that interest, and this is why, and I’m going to quote. “It is almost axiomatic that a policy which seeks to foster the opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the governmental interest in the actual formation of that bond.” And that is the exact same interest that the Respondents are advancing here when they talk about the definition of marriage, which from —

Ruth Bader Ginsburg:

It’s not — it — in the Nguyen case, the father could get the status of a parent.

He just had to do some things that the mother didn’t have to do.

It wasn’t difficult. Here it’s a total exclusion.

And in the Nguyen case, the — the father was complaining that he shouldn’t have to do anything other than what a mother did, and the Court said, yeah, you do have to do something.

It’s not much.

John J. Bursch:

But — but the gist of the Court’s opinion, Justice Ginsburg, was that the State had an interest in the biological father-child bond, not only improving it, but also ensuring that it sustained. It advanced the exact same interest that the States have when they try to inextricably bind kids to their biological moms and dads.

And — and if you change that meaning, over the long haul, it has consequences.

You know, I — I started to say a few minutes ago that the out-of-wedlock birth rate in this country has gone from 10 percent to 40 percent from 1970 to today. And I think everybody would agree that that’s not a good result for children.

And to the extent that you’re changing the meaning of marriage —

Sonia Sotomayor:

But that wasn’t changed because of the recent gay marriages.

John J. Bursch:

No.

I’m not saying that at all.

Sonia Sotomayor:

In Massachusetts, we’ve got data that it’s — the rates have remained constant since they changed their laws.

John J. Bursch:

Right.

But as several Justices have noted, you know, that’s a very short time frame. The whole idea of same-sex marriage —

Anthony M. Kennedy:

But — but you’re the one that brought the statistic up, and under —

John J. Bursch:

Right.

But listen — (Laughter.)

Anthony M. Kennedy:

And — and under your view, it would be very difficult for same-sex couples to adopt some of these children.

I — I think the argument cuts quite against you.

John J. Bursch:

Well, what — what I’m talking —

Anthony M. Kennedy:

And — and it goes back to the basic point where you began where you had some premise that only opposite-sex couples can have a bonding with the child.

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

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Anthony M. Kennedy:

That’s — that was very interesting, but it’s just a wrong premise.

John J. Bursch:

No.

That’s not my premise. The premise is that we want to encourage children to be bonded to their biological mother and father.

We don’t deny at all — disagree at all that same-sex couples can be bonded to their children.

We hope that’s the case.

Elena Kagan:

Well, you see, this is what I think is — is difficult for some people with your argument, is that it’s hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.

So if you would explain that to me.

John J. Bursch:

Because if you’re changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids.

Not the case with the Plaintiffs in this case. We all agree that they are bonded to their kids and have their best interest at heart. But when we’re talking about, Justice Kennedy, over decades, when laws change, when societal views on marriage change, there are consequences to that.

And — and what this comes down to is whether you — not whether you agree or disagree with me or a reasonable voter on whether that could happen.

It’s whether, in drawing these policy lines — you know, every marriage definition excludes and includes some people.

You know, the possible harm is when you change that definition, is that something —

Stephen G. Breyer:

It’s the same point.

What directly is your response to the fact that if we assume a basic purpose of marriage is to encourage an emotional and rearing bond between parents and children, that allowing gay people to marry will weaken it? After all, some non-gay couples have children, many, and some don’t.

And some gay people marry and have children, and some don’t.

So what’s the empirical connection? That’s what I have a problem with in your argument.

John J. Bursch:

Justice Breyer, it’s relatively simple.

If you de-link marriage from creating children, you would expect to have more children created outside the bonds of marriage.

And a reasonable voter — that’s government conduct; right? If — if — right now, take a —

Stephen G. Breyer:

What’s the empirical part of what you just said? If you believe that marriage is — you — I just heard you say it, but I didn’t follow it.

John J. Bursch:

Right.

Because you’re changing slightly the State’s interest.

You’re — you’re talking about the State’s interest in bonding parents and children generally.

And if that was the interest that motivated this — this definition to come into being, there would be a different answer to that.

Just like if —

Stephen G. Breyer:

But I’ve never heard of a State that said, it is our State policy that we don’t like adoption.

I’ve heard of many States who say it’s very important to treat adopted children the same way that you treat natural children.

I’ve never heard the contrary.

John J. Bursch:

Yes, we — we agree.

Stephen G. Breyer:

So if your argument depends upon that, I’m stuck.

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

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John J. Bursch:

Let me be very clear about that.

We love adoption.

Adoptive parents are heroic. There you are talking about children who have, for whatever reason, death, disability, abuse, have already been separated from their biological mom and dad, and so when we’re talking about adoption, that’s an entirely different social issue that gets solved with different State interests.

What we’re talking about here is that world where there is no marriage —

Elena Kagan:

But, you know, they are connected, right? Because if you think about —

John J. Bursch:

Oh, they’re related.

Sure.

Elena Kagan:

If you think about the potential — who are the potential adoptive parents, many of them are same-sex parents who can’t have their own children, and truly want to experience exactly the kind of bond that you’re talking about.

So how does it make those children better off by preventing that from happening?

John J. Bursch:

Well, we allow someone regardless of their sexual orientation to adopt. That’s, again, a very different —

Elena Kagan:

Yes.

But you, yourself, are saying that the marriage — the — the recognition of marriage helps the children, aren’t you? I mean, you’d rather have — the whole basis of your argument is that you want children in marital households.

John J. Bursch:

Correct.

We — we want it to be the glue.

That’s correct.

Elena Kagan:

More — more adopted children and more marital households, whether same sex or other sex seems to be a good thing.

John J. Bursch:

Well, that — that’s a policy argument, and reasonable people can disagree simply and compassionately.

Elena Kagan:

Well, I’m just asking based on your policy how it’s not a good thing.

I’m not trying to put words in your mouth.

I’m just saying if — if — it just seems to me inexplicable given what you’ve said are your policy interests.

John J. Bursch:

Because if you change the societal meaning of what marriage is — and society has already started to move away from what we always understood marriage to be, that linkage between kids and their biological mom and dad.

The more that link is separated, the more likely it is that when you’ve got an opposite-sex couple, that link will not be maintained, because it’s more adult-centric, and it’s less child-centric. You’ve got more kids being raised without their biological mom and dad.

You have more kids being raised without both parents, you know, typically, without a father, though that’s not always the case. And it’s not unreasonable for the people in thinking about the possible consequences of changing a definition, which has existed, as Justice Kennedy said, for millennia, might have real consequences.

To say otherwise is to say that it’s irrational for a person to think that changing an idea about something will have no effect about — on how people think about that idea.

Ruth Bader Ginsburg:

We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down.

And no State was allowed to have such a — such a marriage anymore.

Would that be a choice that a State should be allowed to have?

John J. Bursch:

No.

Ruth Bader Ginsburg:

To cling to marriage the way it once was?

John J. Bursch:

No.

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

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John J. Bursch:

Absolutely not, because there the State didn’t have a legitimate interest in making anyone subservient to anyone else.

But here the State’s entire interest springs out of the fact that we want to forever link children with their biological mom and dad when that’s possible. And, you know, I want to get back to this point of line drawing, and the marriage definition that the Plaintiffs and the Federal government proposed.

You know, and how, no matter where you draw the lines, they’re going to leave someone out, too.

And what they are asking you to do is to take an institution, which was never intended to be dignitary bestowing, and make it dignitary bestowing.

That’s their whole argument. And when you do that, tens of thousands of other children who don’t meet their definition will likewise be left out and suffer those exact same dignitary harms. When you’re talking about a spectrum of marriage definitions, different places to draw the line, and potential harms on both sides, that is the quintessential place for the democratic process to work. And there’s another harm —

Anthony M. Kennedy:

Just in — just in fairness to you, I don’t understand it’s not dignity-bestowing.

I thought that was the whole purpose of marriage.

It bestows dignity on both man and woman in a traditional marriage.

John J. Bursch:

It’s supposed to —

Anthony M. Kennedy:

It’s dignity bestowing, and these parties say they want to have that — that same ennoblement.

John J. Bursch:

Sure.

Anthony M. Kennedy:

Or am I missing your point?

John J. Bursch:

I think you’re missing my point.

If we go back to that world where marriage doesn’t exist and the State is trying to figure out how do we link together these kids with their biological moms and dads when possible, the — the glue are benefits and burdens, but not necessarily dignity. You know, dignity may have grown up around marriage as a cultural thing, but the State has no interest in bestowing or taking away dignity from anyone, and certainly it’s not the State’s intent to take dignity away from same-sex couples or — or from anyone based on their sexual orientation.

Anthony M. Kennedy:

Well, I think many States would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.

I’m puzzled by that.

But you have another point to make.

John J. Bursch:

Well, the — the main point there is — is the State’s don’t intend to bestow dignity, but if you turn it into a dignity bestowing institution, then other family structures and children who are excluded from their definition would suffer a dignitary harm.

You know, so you can’t draw the line there. And — and when you’re talking about balancing harms and the importance of letting people decide the most fundamental of questions, how do we define marriage in our society, it has other, you know, important things to think about as well. You know, one of those is that when people have to act through the democratic process, it forces neighbors to sit down and civilly discuss an issue and try to persuade each other through reason, love and logic.

And we have already seen that happen in eleven States, and if you read some accounts, that could happen in many more very quickly.

When you enact social change of this magnitude through the Federal courts, it’s cutting off that dialogue and it’s saying one group gets their definition and the other is maligned as being irrational or filled with animus.

And that’s not the way that our democratic process is supposed to work and there are long-term harms to our country and to that fundamental liberty interest to govern ourselves.

All the things that this Court talked about in — in the Schuette decision, if you take away that dynamic, if it’s a court-imposed definition as opposed to one enacted by the people through the democratic process.

Elena Kagan:

Of course — I mean, of course, Mr. Bursch, we don’t live in a pure democracy; we live in a constitutional democracy.

And the constitutional — the Constitution imposes limits on what people can do and this is one of those cases — we see them every day — where we have to decide what those limits are or whether the Constitution speaks to something and prevents the democratic processes from operating purely independently; isn’t that right?

John J. Bursch:

It is right.

But, Justice Kagan, as we discussed in our brief and as we’ve seen in the argument here today, you know, there isn’t a constitutional limit that tells people, one, the marriage definition that they’ve had for millennia is so irrational that it’s unconstitutional.

We haven’t seen that under this Court’s sex discrimination jurisprudence that these laws shouldn’t — should be struck down. Under the fundamental rights doctrine, Windsor already resolved that —

Elena Kagan:

No, but that’s the question, is whether there are these equality limits or whether there are these liberty limits. So let’s go back to the liberty limits that you were just talking about.

John J. Bursch:

Sure.

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

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Elena Kagan:

Now, the right to marry. We’ve had — we had Loving.

We had Zablocki.

We had Turner.

In all of these cases what we’ve talked about is a right to marry.

We didn’t try to define the right more particularly: Is there a right to interracial marriage? Is there a right to marry if you’re a prisoner? We just said there’s a right to marry, that is fundamental and that everybody is entitled to it unless there’s some good reason for the State to exclude it — exclude them.

So why shouldn’t we adopt the exact same understanding here?

John J. Bursch:

Well, you walked through those same cases that you just mentioned, you know, Skinner, Maynard, Griswold, Loving, Zablocki — reemphasize Loving itself — every single one of those talked about marriage in the context of men and women coming together and creating children, procreative interest.

Elena Kagan:

Well, they were dealing then with men and women coming together, but the question was, well, there might be a black woman and a — and a black man or a white woman or a black woman and a white man and — and there was no inquiry into whether that was a traditional form of marriage.

If there had been such an inquiry in this country, they would have come up pretty short.

John J. Bursch:

Right.

And historically, that wasn’t part of the tradition, and more importantly, invidious discrimination —

Elena Kagan:

Historically, it was not a part of the tradition, that’s right.

And the Court said —

John J. Bursch:

Can I finish the answer?

Elena Kagan:

— irrelevant that that’s not a part of the tradition because —

John J. Bursch:

Right.

Elena Kagan:

— because there’s no good reason for it not to be part of the next tradition.

John J. Bursch:

Because invidious discrimination based on race had absolutely nothing to do with the States’ interest in linking children to their biological —

Elena Kagan:

But Loving was very clearly — Loving was very clearly not just a racial case, that — it also was a — a liberty case?

John J. Bursch:

Yes.

Elena Kagan:

And indeed, Loving was exactly what this case is.

It’s a case which shows how liberty and — and equality are intertwined, wasn’t it?

John J. Bursch:

No.

Because in Loving, if the couple could not get married, they could not have — they could not enjoy private intimacy at all because it was subject to criminal prosecution and jail time.

And in fact, all of these cases that we’ve been talking about where this Court recognized a fundamental right to marriage, there were other laws that prohibited nonmarital cohabitation —

Sonia Sotomayor:

Well, what — what did that have to do with prisoners? If the States’ interest is in fostering procreation between natural parents, the — it seems to me that the prison who — at issue did that.

It said you can get married if there’s a child on the way.

And that would foster the — or — or promote the interest. We, instead, said, that’s not enough.

The fundamental right to marry does bestow an important — an important connection that we can’t deprive the prisoner of, even if the prisoner at least at the moment and presumably those serving life sentences, have no chance of procreation.

John J. Bursch:

Justice Sotomayor, as you’re well aware, this Court actually decided two prisoner cases.

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

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John J. Bursch:

One was Taylor, the one I think you were referring to; the other is Butler.

This Court in Taylor said even someone in prison who has an expectation of getting out someday has a right to consummate their marriage.

In Butler, you said when someone’s serving a life sentence, it’s appropriate for the State to deny them the opportunity to marry because they never had that opportunity.

So even there, you — you were tying the State interest that we’re asserting here to marriage. And — and let — let’s take away all laws regarding cohabitation and — and intimacy outside of marriage so that there is no criminal conduct, the underlay for all those things. If the State today decided to have no marriage, as some States have proposed, that wouldn’t violate a fundamental right.

The fundamental right at stake in those cases was the right to be left alone, not the right, as Chief Justice Roberts intimated in the first part of this argument, to force the government to come into your home and recognize something and — and to give you benefits.

Those are two very different things. And — and you can draw the analogy to the abortion context.

And I’m reluctant to bring that up, but, you know, in Roe v. Wade and Casey, this Court says the government cannot interfere in that private choice. That’s a fundamental right.

In Maher, the Court says but a woman cannot force the government to come participate in that by paying for it. Likewise here.

Lawrence said the government cannot interfere in private, intimate conduct.

Our position is that the Court cannot, as a constitutional matter, say but yes, you can force the State into these relationships by — by forcing them to recognize and give benefits to anyone.

That’s not the way that our fundamental rights doctrine works. So, Justice Kagan, you know, to get back to your point again about how the Constitution does put limits, there haven’t been any identifiable limits here that — that defeat the States’ interest.

You would have to somehow change one of those doctrines.

You’d have to change your fundamental rights doctrine.

You’d have to change equal protection doctrine.

And when you change those, you also change the balance between the Federal courts and the people voting in the democratic process.

Elena Kagan:

See, to me it seems as though you are doing something very different that we’ve never done before, which is you are defining constitutional rights in terms of the kinds of people that can exercise them.

And I don’t think we’ve really ever done that.

Where we’ve seen a constitutional right, we have not defined it by these people can exercise it, but these people can’t, especially in a case where the claims are both rights-based and equality-based. I mean, it would be like saying in Lawrence, well, there’s only a right to intimate activity for heterosexual people and not a right to intimate sexual activity for gays and lesbians.

And, of course, we didn’t do that.

Once we understood that there was a right to engage in intimate activity, it was a right for everybody.

John J. Bursch:

Absolutely.

But that’s the State’s whole point, is that we’re not drawing distinctions based on the identity, the orientation, or the choices of anyone.

The State has drawn lines, the way the government has always done, to solve a specific problem.

It’s not meant to exclude.

Elena Kagan:

Well, it must be —

John J. Bursch:

It’s not meant to take away dignity.

Elena Kagan:

It must be — But that’s why you’re drawing distinctions based on sexual orientation in these laws.

John J. Bursch:

Oh, gosh, no, because the — the State doesn’t care about your sexual orientation.

What the State cares about is that biological reality.

Elena Kagan:

I’m not asking about — I’m not asking about your reasons and whether you have any or not.

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

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Elena Kagan:

But whether you have any or not, you are drawing distinctions based on sexual orientation. That’s what — that’s what these laws do.

John J. Bursch:

No.

A statute that facially classified based on sexual orientation would look very different.

What these statutes do is they have disparate impact, and you would have to demonstrate them under Washington v. Davis and Feeney that there’s some animus that motivates this.

And this Court has said repeatedly in Ling and O’Brien and other contexts —

Ruth Bader Ginsburg:

It is not to start an impact.

It’s leaving a group out altogether.

It’s not that more of this group and less of that group.

John J. Bursch:

Right.

But as you said in — in Bray v. Alexandria, a 100 percent impact doesn’t necessarily mean animus.

We still have to determine a — a discriminatory intent.

Elena Kagan:

What did — what did we say in Bray? Something about if you prevent people from wearing yarmulkes, you know that it’s discrimination against Jews.

Isn’t that what we said in Bray? Same thing here.

John J. Bursch:

The Bray v. Alexandria case that I was talking about was the one that affected abortion and your ability to have that, which on its surface affects 100 percent of women.

Elena Kagan:

Sorry, the case that I’m talking about said what I said.

John J. Bursch:

Right. (Laughter.)

Stephen G. Breyer:

Should I read anything other than — I’ll certainly go back and read Windsor again and I’ll certainly go and read Glucksberg again. I do recall the cases, at least generally, and I don’t believe there’s anything in those cases that says the basic liberty or right to be married is a right that extends only to opposite-sex couples.

Those — those weren’t really issues in the case as they are here, so I’m surprised if this Court actually wrote that, but — but if it did write that and you can immediately call that page to mind, I’ll doubly look at it.

And I just doubt it’s there, but I’ll look at it.

John J. Bursch:

I apologize for not having the page cite, but —

Stephen G. Breyer:

No, no.

That’s quite all right.

I’ll read the whole opinion.

John J. Bursch:

Yeah.

You will find in Windsor that the Court majority said it’s the limitation of marriage to opposite-sex couples that has always been thought fundamental.

Stephen G. Breyer:

It’s the limitation, fine. Okay.

John J. Bursch:

Yes.

You know, so what — what we’re talking about here is having to —

Antonin Scalia:

Well, that was then and this is now.

Stephen G. Breyer:

How could the limitation — the right has — the fundamental right has to be a right to marry and you said it’s the limitation —

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

del

John J. Bursch:

This Court has always —

Antonin Scalia:

Did Justice Breyer join that opinion that said that?

John J. Bursch:

I — I believe he did.

Antonin Scalia:

My Lord.

Well, I —

Stephen G. Breyer:

Sometimes, you know, context matters.

I’ll go in.

John J. Bursch:

If I could briefly conclude.

John G. Roberts, Jr.:

Sure.

Stephen G. Breyer:

I’m surprised we have this case in front of us if that — I mean, if it’s been so clearly decided, but —

John G. Roberts, Jr.:

Do you want wrap up, counsel?

John J. Bursch:

I — I do want to wrap up. Your Honors, these are obviously very emotional issues where reasonable people can disagree. This Court has never assumed that people have act out of animus when they’re voting in the democratic process. The — the States generally, Michigan specifically, has — has no animus.

It doesn’t intend to take away dignity from anyone.

We respect all parents, and we hope that they love their children. But this Court taking this important issue away from the people will have dramatic impacts on the democratic process, and we ask that you affirm.

John G. Roberts, Jr.:

Thank you, counsel. Ms. Bonauto, you have three minutes remaining.

Mary L. Bonauto:

First, I just want to say that the idea that the ideas of marriage will change is a false dichotomy.

Right now, different-sex couples can choose to marry and rear children.

They can choose to marry at 70 or 90 because of their commitment to one other.

We honor both marriages.

It is only same-sex couples who are foreclosed from marrying under either vision. Second, we agree that these restrictions are, in fact, linked to gender.

There’s official classification here, and they are sex linked in an additional way, and that is ideas about what is a proper relationship for a man to have, a real man or a real woman, and that is obviously not with a person of the same sex. I hear that Michigan loves adoption, and, in fact, Michigan has placed intensely vulnerable children with these petitioners who have nurtured them to a healthy childhood.

Does Michigan deny the marriage because they didn’t conceive those children together, when Michigan would let other adoptive parents who are a different-sex couple marry? No.

Michigan is drawing a line because it does not approve of the adult relationship, no matter what the protestations they follow. Next, we hear a line, it’s not disrespectful because it’s drawn based on biology.

I have to say one casualty of the marriage litigation is an impoverished view of what is marriage and what is the role of biological procreation.

The State’s entire premise here is that if same-sex couples marry, then different-sex couples won’t and have their children in a marriage. Those two could not be further apart.

People make their own decisions.

It is beyond attenuated. And the idea also that there are other people who raise children — and good for them, it’s something, of course, that I hope policymakers would support.

But it’s adult relationships that we’re talking about at the foundation here are different adult relationships, and telling same-sex couples who have made that commitment to one another and have committed to raising children that they can’t is what is stigmatizing. And then, if I may, my — my last point is that the only way I can really understand Michigan’s points about procreation and biology and so on is when I look, for example, at page 31 of their brief.

And they say that what they care about is people who have children together staying together and providing a long-term, stable situation for their children. That interest applies full force in this context, because by denying marriage to same-sex couples, you are denying not only the protection for the adults, which is independently important, you are denying those protections and that security that would come from having married parents. So with that, thank you.

John G. Roberts, Jr.:

Thank you, counsel. The Court will take a brief break and return to the bench in five minutes for argument on the second question presented. (Short break at 11:32 a.m.)