It remains to be seen whether Nessel and Maguire — or thousands of other same-sex couples living in the 12 states that limit marriage to opposite-sex couples — will be able to wed this summer. That depends on what the Supreme Court’s nine justices thought of the arguments they just heard in marriage cases from Michigan, Ohio, Kentucky and Tennessee.
If there is one thing observers from both sides agree on, it’s that nobody knows with any certainty what the justices will do when they rule, probably in late June. That’s because Justice Anthony Kennedy, a Ronald Reagan appointee who for two decades has frequently been the swing vote in decisions, was inscrutable in his questions.
On the one hand, he seemed uncomfortable with declaring a constitutional right to same-sex marriage because the traditional version of marriage “has been with us for millennia … It’s very difficult for the court to say, ‘Oh, we know better,’” he said. But later, to lawyers for the states aiming to limit marriage to opposite-sex couples, he said he believed gays and lesbians can “understand the nobility and the sacredness of marriage.” They may say, he posited, “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.”
“Justice Kennedy's questions indicate a clear pull between pragmatism and formalism,” Penn State constitutional law professor Dara Purvis said. “One argument against marriage equality ties marriage to having children, specifically to say that American society should associate marriage with childrearing and thus have fewer children outside of marriage. Justice Kennedy rightly pointed out, as he has in the past, that gay and lesbian parents are raising children anyway, supported by states that allow them to adopt children. He thus seemed skeptical of the real-world impact of a pro-marriage-equality decision.”
But, she added, “he also repeatedly expressed concern for [the] millennia of a definition of marriage as one man and one woman, conceiving marriage equality as redefining a historical institution rather than applying laws that regulate that institution equally.”
Outside the court, a raucous sea of thousands of sign-waving supporters and opponents of same-sex marriage was jammed on the sidewalks. Two podiums — one for each side — were set up within feet of each other, with speakers unceasingly advocating their sides. In one direction, passers-by could hear biblical condemnations of gays, and in the other a speaker talking about the unfairness of being unable to inherit her deceased wife’s home.
Amid all that, 72-year-old David Johns stood apart, weeping. Twenty-two years ago almost to the day, he stood at the same spot attending the 1993 March on Washington for gay rights.
At the time, marriage equality was a pipe dream. The very idea of so many gay people in one place — a million by some counts — was revolutionary. Now the highest court in America was seriously considering gay lives with respect and dignity, he said.
“I just can’t believe how far we’ve come,” said Johns, a retired real estate agent from Miami, wiping his tears after setting down a small red flag with the equal sign that is the logo for the Human Rights Campaign, an LGBT rights organization. “I didn’t think I’d live to see this.”
The event also provided an impromptu lesson in public discourse for students from Eden Prairie High School near Minneapolis. Seniors from the school were on a trip that happened to coincide with the hearings, so their chaperones set them loose to take in the demonstrations.
“It’s great to see freedom of speech in action,” 17-year-old Brendon Lasinker said. “You have both sides here getting along peacefully, and this is what America is about.”
Lasinker, who favors marriage equality, was with his friend Anthony Polyakov, who said he supports “the Bible’s definition of marriage.” The two argue over the question sometimes, they said, but Polyakov said, “I do respect the freedom for everybody to express their opinions.”
The event was personal to many participants. Nessel took her sons on the public tour of the Supreme Court’s hallowed chambers to show them where she would be on Tuesday. She explained to her boys the emotional moments she anticipated.
“I’m very happy for her,” said her son Alex on Monday at a sign-painting party of Michigan same-sex marriage supporters. “It’s history in the making, I guess. Still one more chapter to go.”
That’s the hope, anyway, for proponents of marriage equality. With 38 states legally recognizing same-sex weddings — mostly because federal courts have forced them to — and circuit courts in disagreement, the Supreme Court will resolve the matter and could impose uniformity in the nation’s marriage laws.
Kennedy is the focal point because he authored the majority opinions in the 2003 case that struck down state sodomy statutes and the 2013 case that voided the federal Defense of Marriage Act and required the federal government to recognize same-sex marriages in states where it was legal. His language in that case, Windsor v. U.S., has been cited by federal courts across the nation in subsequent decisions striking down state gay marriage bans.
The one thing that seemed to hold Kennedy back, many observers believe, is the fear that the Supreme Court could cause great cultural harm if it decided an issue like same-sex marriage before the public supported it.
That shouldn’t be an issue any longer, though; the latest ABC News/Washington Post poll found a record-high 61 percent of Americans support marriage equality. In 2003 only 37 percent did, a strikingly fast shift.
“Cases like this only come around once in a generation,” said Wyatt Fore, a University of Michigan law student who camped out starting at 10:30 p.m. Friday to get a seat in court. Part of that time was spent, he said, working on the speech he’ll give at his commencement next month. “It’s going to be very exciting to talk about the issues that we’ve only been reading about in books. I mean, we never get to see that as law students.”
The National Organization for Marriage, which advocates limiting marriage to opposite-sex couples, held a rally on Saturday that drew hundreds of people. But on Monday night, the vast majority of people in line to get into the hearings and others outside the court were in favor of same-sex marriage. The exceptions were the men and women who were being paid by others to hold spots in the line, many of whom didn’t seem to care one way or the other.
Kassie Dulin, the director of legal communications for the Liberty Institute in Dallas, was an exception; she struggled against a chilly wind to keep steady a large white balloon that read, “Protect religious liberty.” She and her group are among those advocating so-called religious freedom bills to ensure that merchants aren’t forced to provide services to same-sex couples if they believe doing so violates their faith.
“I’m really excited because I think the justices have a great opportunity here to allow the debate to continue” over whether same-sex marriage should be legal, she said. “If they make the decision to legalize or redefine marriage, that’s going cut off the debate.”
Some same-sex marriage supporters tried to engage those who demonstrated against it. Marshia Cadek, 16, of North Springfield, Virginia, calmly attempted to debate with David Miller, a Florida man carrying a bright yellow sign with a biblical quote and shouting that homosexuality is unnatural. She gave up after a few exchanges but said that she and her friends have had respectful conversations with gay-marriage opponents waiting for days in line.
“People from both sides, we all get along,” she said. “I’m just interested to see why people think the way they think.”