Obergefell v. Hodges - Oral Argument - April 28, 2015 (Part 2)

Obergefell v. Hodges

Media for Obergefell v. Hodges

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

Audio Transcription for Oral Argument - April 28, 2015 (Part 2) in Obergefell v. Hodges

John G. Roberts, Jr.:

We'll now hear our argument on the second question presented in this case. Mr. Hallward-Driemeier.

Douglas Hallward-Driemeier:

Mr. Chief Justice, and may it please the Court: The Question 2 Petitioners are already married.

They have established those enduring relationships, and they have a liberty interest that is of fundamental importance to these couples and their children. A State should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so. These Petitioners have built their lives around their marriages, including bringing children into their families, just as opposite-sex couples have done. But the non-recognition laws undermine the stability of these families, though the States purport to support just such stability.

Samuel A. Alito, Jr.:

I was somewhat surprised by the arguments you made in your brief because they are largely a repetition of the arguments that we just heard with respect to Question 1. I thought the point of Question 2 was whether there would be a -- an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage. I thought that's the question in Question 2.

Is -- am I wrong?

Douglas Hallward-Driemeier:

It is the question in Question 2, and this Court's decisions establish that there is not only a right to be married, but a right to remain married; that there is a protected liberty interest in the status of one's marriage once it has been established under law.

Antonin Scalia:

Even -- even if that marriage is -- is not lawful under -- under the receiving State's law; right?

Douglas Hallward-Driemeier:

That's right. There is definitely --

Antonin Scalia:

Is that right? No matter -- I mean, suppose -- well, let's say someone gets married in a -- in a country that permits polygamy. Does a State have to acknowledge that marriage?

Douglas Hallward-Driemeier:

Well, of course, the State could assert justifications for not doing so, and I think there would be justifications --

Antonin Scalia:

Okay.

So --

Douglas Hallward-Driemeier:

-- for not recognizing such --

Antonin Scalia:

-- what would the justification be? That it's contrary to the State's public policy, I assume; right?

Douglas Hallward-Driemeier:

Well, no, Your Honor.

I think that the justification would be that the State doesn't have such an institution.

The -- a polygamous relationship would raise all kinds of questions that the State's marriage laws don't address.

Antonin Scalia:

Well, it would be the same argument.

We don't have such an institution.

Our marriage in this State, which we constitutionally can have because the second question assumes that the first question comes out the way the United States does not want it to come out, the State says we only have the institution of heterosexual marriage.

We don't have the institution of same-sex marriage.

Douglas Hallward-Driemeier:

No.

The institution is the institution of marriage, and the experience of those States --

Antonin Scalia:

Well, you're saying that, but the State doesn't.

The State says the only institution we have is heterosexual marriage.

Douglas Hallward-Driemeier:

The -- the point I'm making, Your Honor, I think is demonstrated by what has happened in those States where, by court order, States have had to permit same-sex couples to marry. All that has happened under their laws is that they have had to remove gender-specific language and substitute it with gender-neutral language.

Sonia Sotomayor:

Now, could I -- could I -- because I don't -- if you want to finish answering Justice Scalia's --

Douglas Hallward-Driemeier:

I was going to say that -- that plural relationships raise all manner of questions that are not addressed by this State's current marriage laws.

Samuel A. Alito, Jr.:

What if it's not a plural relationship? What if one State says that individuals can marry at the age of puberty? So a 12-year-old female can marry.

Would a State -- would another State be obligated to recognize that marriage?