Kennedy’s Focus on ‘Dignity’|May Shape Gay Marriage Decision

(CN) - The Supreme Court debate on the right of states to ban gay marriage turned Tuesday on whether the definition of marriage carries inherent prejudices.

Mary Bonauto, of Boston-based Gay & Lesbian Advocates & Defenders, provoked the discussion just one or two minutes into her argument,

"Here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for marriage," she said.

Chief Justice John Roberts seized on the words "join in the institution."

"The argument on the other side is that they're seeking to redefine the institution," Roberts said. "Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable."

Justice Anthony Kennedy chimed in, "This definition has been with us for millennia. It's very difficult for the court to say, oh, well, we know better."

Justice Samuel Alito asked Bonauto: "How do you account for the fact that until the end of the 20th century, there was never a nation or a culture that recognized marriage between two people of the same sex? Can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?"

Bonauto told the court that "times can be blind," and reminded the court that it took over 100 years for this court to recognize that a sex classification violated the U.S. Constitution.

Justice Ruth Bader Ginsburg interjected to help Bonauto with the question.

"But you wouldn't be asking for this relief if the law of marriage was what it was a millennium ago," Ginsburg said. "Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.

"There was a change in the institution of marriage to make it egalitarian when it wasn't egalitarian," Ginsburg continued.

Roberts doubted that this was a fair analogy, pointing out that a dominant-subordinate relationship is not a legal norm around the world, but the relationship is always between a man and a woman.

Similarly, not all cultures banned interracial marriage, even if many states in the U.S. did for many years, he said.

Justice Anton Scalia joined in. "Well, the issue is not whether there should be same-sex marriage, but who should decide the point," he said. "And you're asking us to decide it for this society when no other society until [the Netherlands in] 2001 ever had it."

Alito asked Bonauto why ancient Greece did not have same-sex marriage when that culture did not frown on homosexuality.

"People like Plato wrote in favor of that, did he not?" Alito asked. "So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?"

Bonauto would not take the bait. "I can't speak to what was happening with the ancient philosophers," she said.

Attorney General Donald Verrilli argued as a friend of the court for the couples challenging bans in their states. "It's important to understand that if this court concludes that this issue should be left to the political process, what the court will be saying is that the demeaning, second-class status that gay and lesbian couples now inhabit in states that do not provides for marriage is consistent with the equal protection of the laws," he said. "That is not a wait-and-see. That is a validation."

The attorney general was unable, however, to explain to Justice Alito how the court could prohibit the marriage of a brother and sister if it expands equal protection rights to same-sex couples.

Attorney John Bursch argued on behalf of the states, saying that the state institution of marriage is not about love and commitment, but a regulation of procreation.

"When you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences," he said.

Justice Elena Kagan asked Bursch if he believed "if one allowed same-sex marriage, one would be announcing to the world that marriage and children have nothing to do with each other?"

Bursch replied that a marriage based on emotional commitment alone without the bond of a child will be less likely to last.

And Kennedy said that argument "assumes that same-sex couples could not have the more noble purpose."

"Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage," he added. "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."

Bursch disagreed, saying that the institution of marriage was "never intended to be dignitary bestowing."

Kennedy doubled down. "It's dignity bestowing, and these parties say they want to have that - that same enoblement," he said.

Justice Kennedy cast the deciding vote in the 2013 case striking down key portions of the Defense of Marriage Act, when he also spoke of "dignity" for same-sex couples. His vote is likely to be decisive in this case as well.

The court also heard arguments on a separate question argued by attorney Douglas Hallward-Driemeier on whether states may refuse to recognize a same-sex marriage consecrated in another state.

Alito characterized the arguments as "largely a repetition of the arguments" already heard by the court on the primary question.

But Hallward-Drimeier said that, even if the challengers lose their primary case, states should not be allowed to effectively dissolve existing marriages if same-sex couples move from one state to another.

"It's our clients who take marriage seriously," he said. "They took vows to each other and bought into an institution that, indeed, as this court has said, predates the Bill of Rights, that is the most important and fundamental in their lives, and the state should offer something more than mere pretext as ground to destroy it."

After oral arguments Bonauto said the hearing had been a "fair" one.

"I look forward to the day same-sex couples are not excluded from the joy, the security, and the full citizenship signified by the freedom to marry," his statement continued. "The road that we've all traveled to get here has been built by so many people who believe that marriage is a fundamental right and I was humbled to stand up for the petitioners."

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