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Friday, May 15, 2015

Unraveling Codewords: High Court Parses Gay Marriage

Written by  Anna S. Sholl, Esq. & Cheryl A. Jones, Esq

Just over two weeks ago, the Supreme Court heard oral arguments in favor of, and against, same sex marriage. As expected, the Justices actively questioned the lawyers on both sides of the argument, and in doing so, triggered a great deal of speculation as to whether or not their questions indicated how they would ultimately vote. Here are some of the key excerpts from the transcripts of the oral arguments.

Chief Justice Roberts pulls out his dictionary to define marriage. The attorney arguing in favor of same-sex marriage began by pointing out that same-sex couples are being denied the equal right to join in the institution of marriage. Chief Justice Roberts quickly reframed her statement, suggesting that same-sex couples do not wish to join the institution; instead, “they’re seeking to redefine the institution.” He went on to comment that “[e]very 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.”

Justice Scalia focuses on history (no surprise!) and who gets to decide. Echoing the Chief Justice’s remarks, Justice Scalia observed that “[f]or millennia, not a single other society until the Netherlands in 2001” accepted same-sex marriage. He also took the opportunity to reframe the issue as being who should decide whether same-sex couples can marry: the people, through referendums, or the courts, pointing out that only in 11 states has same-sex marriage been chosen by the people, rather than decided by judges.

Justice Alito wonders if polygamy is next, compares same-sex marriage to incest. Justice Alito began the “slippery slope” argument, asking if the Court were to hand down a decision re-defining marriage, whether it could lead to “a group consisting of two men and two women applying for a marriage license,” and wondering if there would be any grounds for denying them a license. He also made the most offensive comment of the day, comparing same-sex marriage to incest:

“Let’s think about two groups of people. The first is the same-sex couple who have been together for 25 years, and they get marriage 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 the same way. They care for each other the same way. Is there any reason why the law should treat the two groups differently?”

John Burch (counsel for the states) says marriage is all about the children. Mr. Burch’s main argument against same-sex marriage essentially boiled down to asserting that the States’ interest in marriage has nothing to do with love or emotion; rather, the States are interested in “binding children to their biological moms and dads.” Therefore, same-sex marriage does not advance the States’ interest of binding biological parents to their children.

This argument was vehemently attacked by the four more liberal justices. Notably, Justice Ginsburg question how same-sex marriage would harm this interest. She noted that by allowing same-sex marriage, “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.”

Justice Kennedy alludes to giving same-sex couples the dignity of marriage. Justice Kennedy’s remarks, however, were the most closely watched, as it is predicted that, as in Windsor, he will serve as the deciding vote. Early on, during Ms. Bonauto’s arguments in favor of same-sex marriage, Justice Kennedy seemed to focus on the lack of time that the States and the Federal Government have had to debate same-sex marriage. However, later, during Mr. Burch’s arguments, Justice Kennedy seemed more sympathetic. Pointing out the inherent dignity of the institution of marriage, Justice Kennedy stated, “[s]ame-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 than can be fulfilled.”

In our next article, we’ll tell you how we think the Justices will decide the issue– and why.

Anna S. Sholl, Esq. and Cheryl A. Jones, Esq. are attorneys at Pessin Katz Law, P.A., whose practice includes estate planning for same-sex couples, second parent adoptions, and other family building issues. Anna can be reached at 410-769-6152 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it and Cheryl can be reached at 410-769-6141 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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