WASHINGTON
— Two years ago, Justice Anthony Kennedy left little doubt during
Supreme Court arguments that a part of the federal anti-gay marriage law
was doomed.
When
the justices heard arguments Tuesday in a broader case about the right
of same-sex couples to marry anywhere in the United States, the
78-year-old Kennedy's comments were less clear-cut and his potentially
decisive vote less certain than it was two years ago.
He
left people on both sides of the issue with hopes and fears about the
outcome in the landmark civil rights case, although Kennedy's track
record as the author of the court's three earlier rulings in favor of
gay rights probably gives same-sex marriage supporters less to fear.
Kennedy's
role as the often-pivotal vote on the court was reinforced by the
apparent deep divide between the court's liberal and conservative
justices over whether the Constitution gives same-sex couples the right
to marry. Those couples can do so now in 36 states and the District of
Columbia, and the court is weighing whether gay and lesbian unions
should be allowed in all 50 states.
The
drama played out in the packed, grand courtroom with its 44-foot
ceiling, marble columns and mahogany bench. Kennedy's wife, as well as
those of Chief Justice John Roberts and Justice Stephen Breyer watched
the arguments along with many of the plaintiffs whose cases were before
the court. Also in the crowd was Rives Miller Grogan, who briefly
interrupted the proceedings after about 30 minutes with an anti-gay
harangue that warned gay marriage supporters they would "burn in hell."
Supreme Court police officers quickly removed Grogan from the
courtroom.
As
advocates and protesters demonstrated outside, Kennedy worried about
changing the definition of marriage from the union of a man and a woman,
a meaning that he said has existed for "millennia-plus time."
"It's
very difficult for the court to say 'We know better'" after barely a
decade of experience with same-sex marriage in the United States,
Kennedy told Mary Bonauto, a lawyer representing same-sex couples.
But
he also talked about the touchstones of dignity and concern for
children in same-sex households that drove his earlier opinions.
"Same-sex couples say, of course, 'We understand the nobility and the
sacredness of 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,'" Kennedy said in an exchange with lawyer John
Bursch, who was defending the state marriage bans.
Later,
Kennedy also seemed concerned about adopted children in same-sex
households if only one partner is considered a parent. "Under your view,
it would be very difficult for same-sex couples to adopt those
children," Kennedy said.
Kennedy's
first question to Bonauto suggested to same-sex marriage opponent Ryan
Anderson that his mind is not made up. "The first question out of
Justice Kennedy was, do you want to throw away a millennia-old
definition of marriage for 10 years of same-sex marriage. He was asking
questions that I think are a good sign," said Anderson, a senior
research fellow at the conservative Heritage Foundation.
But
Brian Fitzpatrick, a Vanderbilt University law professor who once
served as a law clerk to Justice Antonin Scalia, said Kennedy's
questioning seemed more favorable to same-sex marriage supporters, even
with his early focus on the definition of marriage. "He did want an
answer to why we should change it after 10 years of experience. I think
he answered that question himself when he talked about dignity and
concern for the children," Fitzpatrick said.
Another
sign that could point to the same outcome was Kennedy's relative lack
of interest in the second issue that was argued Tuesday, whether states
have to recognize same-sex marriages from elsewhere, said Thomas
Goldstein, a veteran Supreme Court lawyer and publisher of Scotusblog.
That's because the answer to the recognition question is unimportant if
the court says same-sex couples can marry everywhere, Goldstein said.
The
Washington lawyer who argued the 2003 case in which the court struck
down state sodomy bans offered a reminder that argument sessions don't
always give a clear picture of where a justice stands. The lawyer, Paul
Smith recalled that Kennedy was "very quiet and hard to read" in the
2003 case of Lawrence v. Texas. Kennedy wrote the court's opinion in
that case.
"Today
I thought his questions overall showed he is leaning our way. He
clearly wasn't convinced of the state interest being offered by
Michigan," Smith said.
The
justices will meet in private on Friday to take a preliminary vote on
the issues and assign opinions. If Kennedy is with the liberal justices
in a five-justice majority, he would decide who gets to write it because
he would be the senior justice in the majority. Kennedy kept the
opinion for himself two years ago and almost certainly would do so
again.
If Roberts is in the majority, he would assign the opinion. In either case, a decision is not expected before late June.
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