By MARK SHERMAN
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.
