The Supreme Court justices will confront two distinct questions during the unusually long, 2½ -hour oral argument this week.
WASHINGTON — Gregory Bourke met his husband-to-be at the University of Kentucky in 1982.
Now, several social revolutions later, Bourke, 57, of Louisville, Ky., and the father of two, is riding atop a cresting wave that’s reached the Supreme Court. Soon, justices will decide whether the Constitution compels Kentucky and other states to wed same-sex couples and accept same-sex marriages conducted elsewhere.
“I want to be recognized as a parent,” Bourke said, “and I want to be recognized as being married.”
Bourke and his husband, Michael DeLeon, 56, a database administrator, married in Canada in 2004. They are among several dozen men and women whose challenges to same-sex marriage restrictions in four states will be considered by the high court Tuesday.
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The court will confront two distinct questions during the unusually long, 2½ -hour oral argument.
One question is whether the Constitution’s 14th Amendment, which guarantees due process and equal protection of the law, compels states to recognize same-sex marriages. The other is whether the same constitutional protections require states to recognize same-sex marriages performed elsewhere.
The untelevised argument will start shortly after 10 a.m. before an audience that will include same-sex couples, political celebrities and more than 100 reporters. It already has sparked behind-the-scenes legal drama, as advocates competed for a coveted position at the podium.
Mary Bonauto of the group Gay & Lesbian Advocates & Defenders, an experienced attorney but Supreme Court novice, won out and will split time with Douglas Hallward-Driemeier, who has argued 15 times before the high court. Solicitor General Donald Verrilli will represent the Obama administration.
Former Michigan Solicitor General John Bursch and Joseph Whalen, Tennessee’s associate solicitor general, will share the harder task of defending the same-sex marriage prohibitions imposed in Kentucky, Ohio, Michigan and Tennessee.
All will be making a play for the court’s pivotal justice.
“Everybody in that courtroom will be waiting to hear what Justice (Anthony) Kennedy has to say,” said James Esseks, director of the American Civil Liberty Union’s Lesbian, Gay, Bisexual, Transgender & AIDS Project.
Kennedy, 78, is a big reason same-sex marriage advocates enter the Tuesday oral argument feeling cautiously optimistic.
In 2013, Kennedy wrote the decision striking down the federal Defense of Marriage Act’s prohibition on same-sex couples receiving federal benefits. A decade earlier, he wrote the decision striking down a Texas law banning homosexual sodomy. In 1996, he wrote a decision striking down a Colorado ballot measure targeting gay rights.
Tellingly, Kennedy reasoned in the 2013 Defense of Marriage Act decision that “no legitimate purpose” was accomplished by the law’s restrictions on benefits for same-sex couples, and he said that the restrictions simply served “to disparage and to injure” same-sex couples.
“Appeals to Justice Kennedy are inevitable in any case like this,” Steve Sanders, an associate professor at Indiana University’s Maurer School of Law, said Friday.
Chief Justice John Roberts Jr. is also a potential member of a majority supporting same-sex marriages that, according to the advocacy group Freedom to Marry, are currently allowed in 37 states and the District of Columbia. Roberts has a reputation as a strategic and sometimes surprising thinker. On landmark decisions, chief justices don’t like to be on the losing side.
All of the other justices appear locked into place.
Democratic appointees Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer will support same-sex marriage. Republican appointees Clarence Thomas, Antonin Scalia and Samuel Alito will oppose it.
The oral argument Tuesday is likely to be great theater for those lucky enough to see it, but it’s unlikely to be decisive. Justices generally lean much more on the written legal briefs, in addition to their own jurisprudential inclinations.
The voluminous written record includes more than 140 friend-of-the-court briefs, filed on behalf of everyone from the Cleveland-based North Coast Men’s Chorus to the state of South Carolina. The former supports same-sex marriage, while the latter opposes it and wants the decision left up to states.
“The institution of marriage has long been regarded as a virtually exclusive province of the states,” South Carolina Solicitor General Robert Cook wrote, adding that the framers of the Constitution were “clear that each state could design marriage laws as it saw fit.”
Like the unusually long oral argument, the extraordinary flood of amicus briefs signals the case’s significance but may not necessarily tilt the decision. Many of the briefs recite identical arguments. One primarily presents anecdotes from individuals who describe themselves as formerly gay.
“God has shown me the fullness of a heterosexual relationship where both people are submitted to His will,” declared New York state resident Melissa Ingraham, described in the brief as “formerly self-identified as a ‘lesbian.’ ”
The multiple cases being heard Tuesday are consolidated, somewhat by chance, under the name Obergefell v. Hodges. Ohio resident James Obergefell’s 2013 marriage in Maryland to his ailing longtime partner, the late John Arthur, was not recognized by the state of Ohio. Among other limitations, this means Obergefell’s name is not listed as spouse on Arthur’s death certificate.
“These are problems that affect people from cradle to grave,” Susan Sommer, director of constitutional litigation for Lambda Legal, said of the same-sex marriage restrictions.
Technically, the lawsuit filed on behalf of Obergefell and other Ohio residents challenges only the state’s refusal to recognize same-sex marriages performed elsewhere. Other lawsuits challenge the different laws prohibiting same-sex marriages from being performed in-state.
In theory, the court could split the answers and decide that states must recognize same-sex marriages performed elsewhere but can’t be required to authorize them themselves.
Underscoring the shifting tide, 63 percent of U.S. residents surveyed in a CNN/ORC International poll in February said they thought gays and lesbians have a constitutional right to marry, up from 49 percent in August 2010.
“I’m feeling pretty positive and confident,” Bourke said.