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The Obergefell v. Hodges case before the U.S. Supreme Court
involving appeals of 4 same-sex marriage cases, from Kentucky,
Michigan, Ohio, & Tennessee.

Part 20: 2015-APR-28:
The U.S. Supreme Court held hearings in
the consolidated case "Obergefell v. Hodges."
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We use the acronym "SSM" to represent "same-sex marriage."
"LGBT" refers to lesbians, gays, bisexuals, transgender persons
and transsexuals. "LGB" refers to lesbians, gays, and bisexuals.

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This topic is continued from the previous essay which
describes the March for Marriage sponsored by the
National Organization for Marriage

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same-sex marriage symbol 2015-APR-28: Hearings before the U.S. Supreme Court:

The long-anticipated day arrived. Nine justices held a hearing in the consolidated same-sex marriage lawsuit Obergefell v. Hodges.

Some members of the public had been begun camping out in front of the U.S. Supreme Court building at 6 AM on APR-24, four days before the hearing. They hoped to gain access to one of the 50 seats in the courtroom reserved for for those who wanted to observe the 150 minute hearing.

It is probably an exaggeration to refer to this two and a half hour hearing as having heavily influencing the future lives of over 32 million U.S. adults who form the bulk of the LGBT community. That group consists of about 16 million persons who have -- or will discover sometime later in their life -- that they have a bisexual orientation, along with about 8 million lesbians, and about 8 million gays who also either know now, or will discover later, their sexual orientation. In reality, the nine Justices of the U.S. Supreme Court entered the courtroom having considered in depth the constitutionality of marriage by same-sex couples for years. It is probable that few of the Justices, if any, changed their minds on this fundamental cultural topic as a result of hearing lawyers' testimony on this day. It came from lawyers representing plaintiffs and defendants in lawsuits from Kentucky, Michigan, Ohio, and Tennessee.

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Audio recordings and transcripts of the hearings:

There was no radio or TV coverage of the hearings.

No pictures were taken -- at least none were taken legally.

An audio recording of the oral arguments is available on the U.S. Supreme Court web site.

A transcript is available on the Minneapolis Star Tribune web site at:

The hearing dealt with two separate questions:

  • Part 1 deals with the first question: Does the Fourteenth Amendment to the U.S. Constitution require a state to license a marriage between two people of the same sex?

  • Part 2 deals with the second question: Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

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All the media seems to have agreed on one item: As Adam Liptak of the New York Times wrote:

"The Supreme Court on Tuesday seemed deeply divided about one of the great civil rights issues of the age: whether the [federal] Constitution guarantees same-sex couples the right to marry." 1

Liptak continued:

"The questions from the justices suggested that they were divided along the usual lines — conservative and liberal — with Justice Anthony M. Kennedy holding the controlling vote. On the evidence of his words, he seemed torn about what to do. But Justice Kennedy’s tone was more emotional and emphatic when he made the case for same-sex marriage. That, coupled with his earlier judicial opinions, gave gay rights advocates reason for optimism by the end of the arguments ... ." 1

For example, Justice Anthony Kennedy commented to a lawyer for the plaintiffs:

"I don’t even know how to count the decimals when we talk about millennia. This definition [of marriage] has been with us for millennia.  And it — it’s very difficult for the Court to say, oh, well, we — we know better. ... the social science on this [is] too new."

To which Ms. Bonauto, a lawyer representing plaintiffs in the case responded:

"Well, I don’t think this is a question of the Court knowing better. When we think about the debate, the place of gay people in our civic society is something that has been contested for more than a century."

However, later, Justice Kennedy -- when challenging a lawyer for the defendants -- said that same-sex couples had been denied the dignity of marriage and that their children could suffer because of this. He said:

"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'." 1

The root cause for the disagreement among the Justices is related to their understanding of the fundamental nature of the U.S. Constitution:

  • The conservative Justices view the Constitution as a fixed document. It must be interpreted in terms of the beliefs of its original authors back in the late 18th Century. Its amendments are also interpreted in terms of their authors' beliefs. The 14th Amendment which has played such a major role in marriage equality was ratified in 1868. Since same-gender sexual behavior was a capital offence in some states at that time, allowing same-sex couples to marry would have been inconceivable to the framers of the document.

  • The liberal Justices view the Constitution as a living document. They interpret it in terms of modern-day understanding of moral and ethical matters, influenced by scientific findings.

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Webmaster's comment: [bias alert]

Justice Kennedy's statement about same-sex couples being unable to procreate triggered in me a memory of an event in a Canadian court about a dozen years ago. Same-sex marriage was being debated. A lawyer representing the federal government had delivered a lengthy argument. It was based on his assertion that same-sex couples were not able to procreate. Then, the plaintiffs' lawyer rose to issue a rebuttal. But she didn't really have to say anything. She is a lesbian and was obviously in an advanced stage of pregnancy. The government's case evaporated.

It is now general knowledge that:

  • Two female spouses can procreate: one method is to artificially inseminate one of the women with donor sperm just like infertile opposite-sex couples can. Another alternative is to use in-vitro fertilization.

  • Two male spouses can procreate: one method is to artificially inseminate a surrogate mother using sperm from one of the men, just like infertile opposite-sex couples can. Again, in-vitro fertilization can be used.

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Chief Justice Roberts suggested a different basis on which to discuss marriage discrimination against same-sex couples:

One curious comment was voiced by Chief Justice John G. Roberts Jr. He has generally voted with the conservative wing of the court in the past. But he asked:

"I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?" 2

This is an important development, because the Equal Protection clause of the 14th Amendment of the U.S. Constitution has been recently used by dozens of state and federal courts to evaluate what the federal Constitution has to say about same-sex marriage. When this clause is used to analyze discrimination, it treats bias based on a person's gender differently from bias based on a person's sexual orientation. Gender, like race, is a protected class and receives "strict scrutiny.' It takes exceptional circumstances for a law that discriminates on the basis of gender to be found constitutional. But the class assigned by the U.S. Supreme Court to sexual orientation is not clear. Some claim that such discrimination is only subjected to "rational basis" review. That is, if a state has a law restricting the rights of the LGBT community that has any kind of rational basis, then it may be considered to be constitutional.

Viewing bans on same-sex marriages as simple gender-based discrimination rather than as sexual orientation-based discrimination has rarely surfaced during the many dozens of SSM lawsuits in federal and state courts over the past two years. But this might possibly be an argument that convinces Justice Roberts to vote in favor of marriage equality and result in a a 6:3 vote that legalizes same-sex marriage across the entire nation.

Using the label "same-sex marriages" instead of "gay marriages" highlights the fact that bans on SSMs are ultimately based on gender-based discrimination. When a courthouse clerk reviews an application for a marriage licence, the sexual orientation(s) of the couple are not known or even asked. It is only their gender that currently excludes same-sex couples from marrying in 13 states.

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Comment on the hearing by Ryan Anderson of the Catholic Education Resource Center (CERC):

Ryan T. Anderson is a board member of CERC, a fellow of the Heritage Foundation. and an editor at the Witherspoon Institute. Writing for Public Discourse, he said:

"Tuesday's oral arguments at the Supreme Court were excellent.

There were so many good points made about what marriage is and why redefining marriage would cause harms.

This serious consideration of the harms of marriage redefinition stands in stark contrast to outrageous lower court rulings that had declared no rational basis to state marriage laws defining marriage as it always had been in America: a union of husband and wife. ..."

The Constitution itself is silent about it.  So the justices should uphold the authority of citizens and their elected representatives to make marriage policy in the states. ..." 3

Webmaster's comments [bias alert]

IMHO, Anderson's third paragraph misrepresents the many dozens of rulings by lower courts. There are obvious rational bases for marriage laws. When couples make a commitment to each other and marry, they benefit society in many ways. In return, the government grants them various benefits and protections. The lower courts did not say that marriage involving a union of a woman and a man had no rational basis. What they did declare is that there is no rational basis for restricting marriage to one woman and one man by banning marriages of couples composed of two women or two men.

Anderson's fourth paragraph also seems to misstate the requirements of the federal Constitution. He is correct that the Constitution is silent on marriage. This means that the definition of marriage is automatically left up to the individual states or is left to the people to decide. Since marriage brings with it 1,138 federal benefits and protections as well as hundreds of state federal benefits and protections, the definition of marriage cannot be left up to individuals. It must be carefully defined by each state. On this, everyone is in agreement. Defining marriage is one of the tasks that states do; it is what they have always done. What Anderson leaves out is that the Due Process and Equal Protection clauses in the 14th Amendment to the U.S. Constitution require states to treat individuals and couples equally. The key question before the high court in Obergefell v. Hodges is:

If a state allows all opposite-sex couples to marry who meet age, genetic closeness, and financial requirements, then does the 14th Amendment of the federal Constitution require each state to also allow same-sex couples to marry, as long as they meet the same requirements?

To recap: Everyone agrees that it is a state's responsibility to define in law the requirements that couples must meet in order to marry within the state's geographical borders. The only topic being debated here is whether the state law defining marriage eligibility can include only opposite-sex couples and exclude same-sex couples.

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This topic continues in the next essay with a discussion of what the
high court's ruling may be in mid-2015, and how evangelical Christians
and other religious conservatives may respond if the court were to
legalize same-sex marriage across the U.S.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Adam Liptak, "Gay Marriage Arguments Divide Supreme Court Justices," The New York Times, 2015-APR-28, at:
  2. Adam Liptak, "Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage," The New York Times, 2015-APR-29, at:
  3. Ryan T. Anderson, "Supreme Court Debates Meaning of Marriage," Catholic Education Resource Center," 2015-APR-30, at:

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Copyright 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-APR-28
Latest update: 2015-MAY-06
Author: B.A. Robinson
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