WASHINGTON — Members of the Supreme Court questioned on Tuesday whether now is the right time to force states to allow same-sex couples to marry, pointing to how quickly public opinion has shifted on the issue of marriage equality.
Justice Anthony Kennedy, who was a key figure in striking down the Defense of Marriage Act in 2013, suggested that he might be worried about the court moving too quickly to force states to marry same-sex couples.
“This definition has been with us for millennia,” Kennedy said of male-female marriages. The justice also said it would be very difficult for the court to say it knows better than the public on the issue.
The questions came during the first session of oral arguments Tuesday for a historic case over whether there is a constitutional right to same-sex marriage. The justices were questioning Mary Bonauto, a lawyer representing same-sex couples who wish to be married.
Tuesday’s hearing will continue into the afternoon. The judges are considering two issues during the oral arguments: whether states are required to offer marriage licenses to gay couples, and whether states have to recognize same-sex marriages performed outside their borders. The court will likely issue one decision in June covering appeals from four states — Kentucky, Michigan, Ohio and Tennessee.
“You’re seeking to change what the institution is,” said Chief Justice John Roberts. He said that “prior to about a dozen years ago” there was no society that recognized same-sex marriages.
Justice Ruth Bader Ginsburg said that there have been changes to the institution of marriage, which used to be a “dominant and subordinate” relationship. She said that same-sex marriage would not have fit into that structure.
“Did they have same-sex marriage in ancient Greece?” asked Alito. He also questioned whether four consenting, highly educated adults, two men and two women — perhaps lawyers, he joked — could ask a state to be married. Bonauto responded that there would be issues of coercion and consent and family disruption that would give states an interest in banning such unions.
Roberts said that if the court were to order states to issues licenses to same sex couples, “there will be no more debate.” Not allowing voters to weigh in on the issue “can close minds,” he added.
Thirty-seven states and Washington, D.C., currently recognize same-sex marriage.
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