The Supreme Court heard arguments on Tuesday in Obergefell v. Hodges, and it appears the fate of the decision is in the hands of Chief Justice John Roberts and Justice Anthony Kennedy. During arguments, both were questionable of all parties and would switch between showing favor and dissent.
All eyes were on Justice Anthony Kennedy, considered a key vote for challengers to the state bans, who has penned three decisions in favor of gay rights over the years.
At the start of arguments he joined other conservatives concerned with the fact that marriage has been defined between a man and a woman for a long time. “This definition has been with us for millennia,” he said. “And it’s very difficult for the court to say: ‘Oh, well, we know better.’ “
But later Kennedy pressed John Bursch, a lawyer defending the bans: “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.’ “
Roberts, who conservatives are still mad at for not killing Obamacare, is also considered to be a swing vote and might favor letting states decide whether or not they want to support same-sex marriage.
He expressed concern about closing off the debate currently going on in the states. “I mean, closing of debate can close minds, and it will have a consequence on how this new institution 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 the courts,” he said.
High school students might be tested on Obergefell v. Hodges one day, just like they learn about Brown v. Board, but that will come down to the two men mentioned above.
“We heard both of them in the arguments today showing support for both sides of the argument, showing skepticism for both sides of the argument,” Vladeck said. “I think the headline here is it’s about what we expected. It’s going to be close, it’s going to be divisive and it’s going to come down to Kennedy and Roberts.“