The U.S Supreme Court is
hearing arguments today in cases that challenge laws in Kentucky, Michigan, Ohio, and Tennessee barring same-sex couples from marrying and also barring recognition of marriages of same-sex couples performed out of state. We've heard some bizarre claims from the right—like marriage equality will cause abortion—but what do we expect to hear from the court? Well, if you're listening just to Justice Antonin Scalia, expect to
hear some pretty offensive things based on past experience.
Here's a gem from his dissent in Lawrence v. Texas, the case challenging a Texas sodomy law: "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. […] They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." Yes, that's part of his dissent—people's bigotry should allow the state to criminalize other people's sex lives. That's relatively inoffensive compared to his dissent in Romer v. Evans, a case challenging Colorado's ban on any local jurisdictions outlawing discrimination on the basis of sexual orientation. "Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even 'animus' toward such conduct. Surely that is the only sort of 'animus' at issue here: moral disapproval of homosexual conduct[.]" Yes, being gay is just like being a murderer. And having gay sex in the privacy of your own home can be viewed by others as the same as "bigamy, adultery, adult incest, bestiality" and so on, as he argued again in Lawrence, and because some people might consider them as just the same, it should all be against the law.
There's very little that Scalia can say today that will surprise anyone, though, so the key justice here (as usual) is Anthony Kennedy and whether he will look for a way to split up the two questions before the court: marriage in every state versus whether every state will have to recognize marriages from elsewhere. Greg Sargent interviewed Lawrence Tribe about how Kennedy might approach the question:
"I'll be looking to see whether Justice Kennedy in particular seems to have any hesitation about pursuing Windsor as far as its logic suggests, which might be the case if he focuses heavily on the question of state recognition of same-sex marriages from other states and seems open to a compromise that would make same-sex marriages portable but would leave states free to decline to perform such marriages themselves.
"I think reasons for optimism would include a lack of emphasis by Justices Kennedy and Ginsburg and the Chief Justice on splitting the baby between the two questions the Court has agreed to hear. Reasons for pessimism for a broad marriage equality ruling would include lots of questions suggesting the viability of that kind of compromise."
SCOTUSblog will be
providing periodic updates here as the arguments continue, and the full hearing recordings are expected by mid-afternoon. That will give us a better sense of where critical swing vote Kennedy might be leaning, though the ruling won't be made until late June.