During a two-and-a-half hour hearing, the U.S. Supreme Court considered Tuesday whether states have the right to allow same-sex marriage.
A ruling, expected by the end of June, could result in a nationwide constitutional right to same-sex marriage or the rollback of some states’ existing laws allowing it. Currently, 36 states and the District of Columbia allow same-sex marriage.
The argument in Obergefell v. Hodges addressed two issues. The first concerned whether the Constitution requires states to license a marriage between two people of the same sex; the second involved whether states must recognize same-sex marriages performed in other states.
Justice Anthony Kennedy, considered a swing vote, said, “This definition [of marriage] has been with us for millennia. And…it’s very difficult for the court to say, ‘Oh, well, we – we know better.’”
But gay rights attorney Mary Bonauto, a lawyer representing the plaintiffs in the case, countered that “the place of gay people in our civic society is something that has been contested for more than a century.”
Virginia Attorney General Mark Herring, who attended the hearing, said he was surprised when Chief Justice John Roberts spoke about equal protection and gender discrimination, pointing out that a man can marry a woman but not a man.
“Perhaps the case will be decided on those grounds,” said Herring.
Herring said it was noteworthy that the chief justice and Justice Antonin Scalia focused their questions on whether a same-sex marriage in one state must be accepted in another. That may indicate that the court could rule differently on the two questions, he said.
Janson Wu, executive director of GLAD (Gay & Lesbian Advocates & Defenders), who also attended oral arguments Tuesday, noted that Kennedy “spoke quite eloquently about the noble purpose of marriage and how gay people do understand that.”
When a few of the more conservative members of the bench spoke about traditional marriage, Justice Ruth Bader Ginsburg, a member of the court’s liberal wing, noted that the institution of marriage has changed throughout history, specifically mentioning the protection and control of a woman by her husband, Wu said.
The Anti-Defamation League authored an amicus, or friend of the court, brief in favor of same-sex marriage, which was signed onto by several Jewish organizations. “We’ve come to the point in time that the arguments against [same-sex marriage] are grounded in religious arguments,” said ADL attorney Seth Marnin.
“A solid wall between church and state is very important to the Jewish community. We know and understand” what it’s like to live under state-sponsored religion, he said.
“Religious liberty is a shield, not a sword,” Marnin said.
Should the Supreme Court rule that states must recognize marriages performed in other states, same-sex couples will not have to worry every time they cross state lines, Marnin said. He compared the current conditions for same-sex couples to earlier laws that said blacks were not people. He called such laws “embarrassing.”
Rabbi Jonah Pesner, director of the Religious Action Center of Reform Judaism, said he hopes that the court’s ruling “may finally take off the table this state-by-state” way of dealing with gay marriage. Then, “we will see what the U.S. as a nation believes,” he said.
Most of the state bans on gay marriage are driven by religious intolerance by those who “want to impose” their views on the greater society, Pesner said. But marriage should be a civil matter, not a religious one.
It is important to remember that “every human being is created in God’s image,” Pesner said, adding that the Reform Movement has been active in gay rights for decades. In 1990, the Hebrew Union College-Jewish Institute of Religion declared it would not discriminate against gay and lesbian applicants.
According to the Public Religion Research Institute, 77 percent of Jews support same-sex marriage.
Halley Cohen, director of GLOE – Kurlander Program for GLBT Outreach & Engagement in Washington, is a supporter who stood among the many people gathered Tuesday on the steps of the Supreme Court. “I was so proud to stand there as a queer Jewish woman and be surrounded by a sea of people who believe in fighting for justice because of our faith, because of our Jewish identities, and not in spite of it.”