America Letter: Supreme court arguments mirror Irish marriage equality debate

It’s Obergefell, pronounced Oh-ber-guh-fell. It hardly trips off the tongue, but the name of this shy property agent and art collector could feature in US history books alongside Brown, the name associated with the Supreme Court decision racially desegregating public schools, and Roe, the name associated with the court ruling legalising abortion.

All Jim Obergefell wants is to have his name listed as the surviving spouse on the death certificate of his late husband John Arthur in Ohio and he went to the Supreme Court in Washington DC on Tuesday to try to make it happen. The landmark case is the first to be considered by the court that could legalise same-sex marriage nationwide.

In a wave of court decisions, gay unions have been recognised in 37 US states and the District of Columbia, covering an estimated 70 per cent of the population, but the liberal tide has come on a state-by-state basis. Obergefell v Hodges (named after Richard Hodges, who runs Ohio’s health department), the lawsuit that is leading a collection of six lawsuits filed by 32 couples, could make it legal in all 50 states in a single judgment.

The Supreme Court has been the reluctant arbiter on social issues, the fastest moving of which is same-sex marriage. It is just 12 years since Massachusetts became the first state to recognise same-sex marriage and courts across the country have followed, showing shifting attitudes towards another civil rights issue.

Frustration

A Washington Post/ABC opinion poll last week put support for gay unions at 61 per cent, compared with 38 per cent about a decade ago.

Some of the supreme court’s nine justices have expressed frustration at the failure of Congress to act as the people’s elected representatives on such important matters and the judges have shown reluctance to act at a more progressive pace than the conservative-leaning states are willing to travel.

On Tuesday the court heard arguments on two issues: whether the US Constitution requires states to issue marriage licences to same-sex couples and if they don’t, whether the states are obliged to recognise same-sex marriages from other states where they are legal.

Court-watchers weredissecting the questions of Justice Anthony Kennedy, who often casts the deciding vote between the court's conservatives and liberals, to see how he might fall.

Kennedy, a guest at US vice-president Joe Biden’s St Patrick’s Day breakfast for Taoiseach , seemed to be trying to figure it all out: at one point he said the traditional definition of marriage “has been with us for millennia” and, at another, talked about same-sex couples wanting other “attributes” of marriage beyond procreation “in order to show that we too have a dignity that can be fulfilled”.

Justice Stephen Breyer, one of the court's liberals, appeared unwilling to jump ahead of states: "Suddenly you want nine people outside the ballot box to require states that want to do it to change . . . what marriage is?" Chief Justice John Roberts adopted a similar view, saying that if states had to recognise out-of-state same-sex marriage, "one state would basically set the policy for the entire nation".

Justice Samuel Alito, a conservative, asked whether four people should be allowed to marry if they were consenting adults, highly educated and, say, "all lawyers", he added to laughs in the court.

Mary Bonauto, the lawyer arguing for same-sex marriage, replied that marriage was a mutual commitment involving two people.

Robust sparring

When it came to the robust legal sparring, the prized fighter on the day was Justice Ruth Bader Ginsburg, the oldest judge on the bench who dissected the arguments of John Bursch, the lawyer representing the four states seeking to preserve their same-sex marriage bans.

As some of her conservative colleagues toiled with the possibility of upending centuries of tradition, the 82-year-old judge said matter-of-factly: “Marriage today is not what it was under the common law tradition, under the civil law tradition.”

Referring to the court’s 1982 decision that ended the definition of marriage as being “a relationship of a dominant male to a subordinate female”, she asked Bursch: “Would that be a choice that a state should be allowed to have, to cling to marriage the way it once was?”

“No,” he replied.

On the argument that the sole purpose of marriage was procreation, Ginsburg said: “Suppose a couple, 70-year-old couple, comes in and they want to get married? You don’t have to ask them any questions. You know they are not going to have any children.”

She rejected the view that marriage would be undermined for opposite-sex couples, arguing: “All of the incentives, all of the benefits that marriage affords would still be available. So you’re not taking away anything from heterosexual couples.”

Ginsburg’s star turn aside, the 2½ hours of arguments showed deep divisions in the court, reflecting the views of some judges who may not want to move as fast as others.